New South Wales Bar Association v Forbes MacFie Hansen Pty Ltd

[1988] FCA 243

CATCBWORDS

TRADE PRACTICES ACT - application for Injunctive relief pursuant to	S 80
- whether the Trade Practices Act binds	the Croun in right of the State

- whether inunity of State Crown extends to others vith whom the Crown contracts or enters into an arrangement or understanding - interests of the State Crown adversely affected by the granting of an injunction - meaning of Government business - whether State Minister or others

dealing vith them can be guilty of alding and abetting the comission of

an offence under the Trade Practices Act.

Trade Practices Act 1974:	sections 2A, 52, 80
L a w Societ	of Heu South Wnler

imixdii

on behalf of

The Australian Aarociation of Surgeons	'	Third Applicant
- v -
First Respondent
Second Respodent Third Respondent Fourth Respondent
G 219 of 1987

Einfeld J. Sydney 23 Uay 1988
IN THE m	COURT OF AUSTRALIA 1

DIVISION 1 No. G 219 of 1987

NEWSODT E WllteS DISTRICT REGISTRY 1

BETWEEN:  NEW SOUTE WALES BAR ASSOCIATION

First Applicant

LAW SOCIETY OF	NEW SOUTE WALES
Second Applicant

MICBllEL ARONEY and
DONALD WERVYN SEEIDON
on behalf of

TEE AUSTRALIAN ASSOCIATION

lcant

FORBES MACPIE MNSEN PTY LIMITED

First Respondent

mNOm M m ADAM (NSW 1

PTY. LMITED and

-0 AUS-IA PTY LMITED

trading aa .WOJO MDA"

Second Respondent

TEE EONOURABLE

PATRICK MRCY BILLS

Third Reapondent

TEE BONO-

BOOTH

Respondent

CORZM: Elnfeld J.

- DATE: 23 M y 1981

PIdCE: Sydney

MINUTE OF ORDERS

1. The application is didaaed.

2. Coats are t o be paid by the applicants, including costs of the

second respondent up to their departure from the suit.

m: settlement and entry of them orders la dealt vlth in Order 36 -

of the Federal Court Rules.

IN TEE FEDERAL COURT OF A U S m I A

1

GENERAL DIVISIOH	1	No. G 219 of 1987
1

NEW SOUTE -S DISTRICT REGISTRY

BETWEEN:  NEW SOUTE WALES BAR ASSOCIATION

First Appllcant

LAW SOCIETY OF NEW SODTE WALES

Second Applicant

mRBES MACFIE EANSEN PTY LIMITED

First Respondent

MWOEAN DAYMAN ADAMS (NSW)

PTY. LIMITED and

MOJO AUSTRALIA PTY LIMITED

trading as "MOJO MDA"

Second Respondent

TEE BolDouRIBLE

PATRICX DARCY BILLS

Third Respondent

TEE BONO-

-TB GEORGE BOOTE

Fourth Respondent

Application uas made under section 52 of the Trade Practices Act 1974

(the Act) on the 22 )I.y 1987 by the Neu South Wale. Bar Association. the

L8u Society of Uew South IRler ami Doctor8 Nlchael Aroney and Donald

Uervyn Sheldon on lmhalf of the Auatralian Association of Surgeons (the

applicanta), aeeking injunctive relief pursuant to section 80 of the

Act. Restraint vas sought on the Nev South Walea Government from

continuing a series of advertisements in various elements of	the mass
media which began on 7	April 1987 and vere scheduled to continue to 27
May 1987. In aummry. the aim of the advertisements was	to introduce,
explain and promote the Nev South Walea	Government's new Transcover and
Workcover legislation.

Porbea Uacfie Eanaen Pty Limited (the firat respondent) and MOJO W A (a buainess trading name of Uonahan Dayman Mams (NSW) Pty Limited and MOJO Australia) (the second respondent) vere alleged to be the advertising agents of the Heu South Walea Government reaponsible for preparing and placing the advertiaementa in the media. It emerged that the second

respondent had	nothing to do	vith the relevant advertisements and
subject to costa it -8	by consent effectively	dlmiaaed from the suit.

!l'he third and fourth reapondent. were at the relevant time respectively the Miniater for Indoatrial Relations and Employment and the Treasurer in the New South Wales Government (the Ministers).

In Vier Of the iainence of the rmining advertisements, the matter

uaa dealt with aa one of urgency. A8 it eventuated, however, the action

uaa really a mal18 of hlghlightlng, one auapecta more politically or at

least foren8ically than legally, the applicants' objections to the
substantial changes made by the legialation in the compensation of
persona injured in motor vehicle and uork place accidents. This is
becauae by the tiab the litigation vas copwnced, almoat all of the
allegedly nialeading or deceptive adveytirsmenta had already appeared.

In addition, aa uaa obvioualy the cam, none of the applicanta claimed

to ba directly adver8ely affected by any loaa or reduction of rights

provided by the legialation for the victims of accldents. Their

interest was either narrow and selfish, or as guardians and advocates of

the public interest, or both. There uas no evidence that any member,

group of member8 of the public. trade union or other mass membership body had sought or sanctioned the proceedings. If an injunction might

otherwise be available, notwithstanding the colourfully expressed views
of Deane J, as a member of a Full Court of this Court, in Phelps v
Western Mining Corporation Ltd (1977-8) 33 E%R 321. serious discre-

tionary que8tions may arise in relation to the appropriateness of

intervention by the Court in cIrcum8tances such as these - and as late

in the event8 a8 here - where private rights were being litigated by

self intereated narrow m&ership public bodies not per se entitled to

or the beneticiarie8 of the rights.

A8 the overall proceeding8 uere eventually di8posed of on the giving of mutual rmd.rtaking8 by the parties (which had the effect that the

remaining ad~rti811tg n m not to appear), only one aubatantive matter

now require8 deci8ion. There vas no diapute that the first respondent

uas the rbP.rtising agent rho devised and placed the advertisements,

that the 1IlPister8 w r e member8 of the Government who wanted the

adverti8mnts. 8nd that the 1Ilnister8 authorised the relevant

advertisemnts.

On 25 Hay 1987 the Solicitor General of New South Wales who appeared on

behalf of the Winistera, and the first respondent, filed notices of

motion seeking that the proceeding8 before the court be sumarily

dinmissed pur8rrmf to Order 20 of the Federal Court Rules. The

Solicitor General pmt the folloving arguwnts:

(a)	The Act doe8 not apply t o the New South Wales State Crown.
(b)	The Ministers were representatives of the New South Wales State Crorn .
(C)	There is no ~nrisdiction under the Act to grant injunctive or any other relief that would effectively censor or restrict the

activities of the New South Wales State Crown.

STATUTORY POSITIOII

The issues raised by the Ministers arise because	the Act expressly
provides that the Copllonvealth is bound by the	Act but is silent as to

the position regarding the States. The relevant provision concerning

the Commonwealth is section 21L of the Act:

1%. (1) Subject o this ection, thls Act (other

than Part X) bindr the Crown in the right of

the cummmalth in so far as the Crown in

right of the	Cmmmalth carries on a
business, either directly or	by an authority
of the CCmrrrnuMlth.

(2)	Subject to the succeeding provisions of this
section, th ia Act applies as if-
(a) the Cummnwealth, in so far as it

carries on a business otherwise than

by an authority of the	Curmnwealth;
and

(b) each authority of the Canmnwealth

(&ether or not acting as an agent of the Crown in right of the

Canronmalth) in so far as it

carries on a business,

wan a corporation.

(31	NothFng in this Act reders the Crown in right of the Cmmnwealth liable to be
pmaecuted for an offence.
( 4 )	part Wdoes not aFply in relation to the
bu8iMsI carried on by the Curmnwaalth in darsloping, ard dlrposing of Interests in,
land In the Australian Capital Territory. "

The queatlon aa to whether, In the absence of clear statutory provision,

the State Crown la bound by the statute was thus stated by Gibbs ACJ (as

he then was) In Bradken Conaolldated Ltd v Broken Bill Proprietary CO

- Ltd. (1978-79) 145 CLR 107 at 116 :

"It is an establishad rule of construction that no statute binda the Crom m e s s the Crown is expressly nmmd therein

or m o r a there is a necessary implication that it	wbs
in-	to be hod; there will bs such a necessary
inpllattion i r it	is manifest frau the very tenns of the
statute that it was the intention of	the legislature that
tho crown should km bourd: pmvlnce of my	v -clpal
carporation or m y	(19471 A(: 58 at 61. he ~rade

Practices Act, by s . U , expressly states that (subject to

that aection) it binda -the Cm in right -of the

CCamDnwbalth in M) far as the C m	in right of the
Comnononslth carries an a busineaa, either directly	or by an

authority of the Cunmnwalth. The Act is hotaver silent on

the qlmstion whether it is int- to bind the Crown in

right of a S t a t e . The question thua arises *ether the rule to which I have r e f e d mans that a statute of the cormm#ilfh will not k conatrued as binilng the crown in rl@t of a Stab un&rr it appmra by expresa words or

necessary lnplication that it =AS intenid to do so. In

other words,	dcas the rule amly to the Crown in all its
capacities, or only to the C m	in right of the camnmity
i b r e Isgirlation is udor midaration?	men construing a

atatute, dcas "the Cram', for the purpose of this rule, man only the Crown in right of the Cummwlth or doas it incluh the Cmon in right of a State?'

In hls judgment, Glbba ACJ examined a number of authorities that have
consider&	the problem and concluded that the Act does not bind the

Crown in right of a State.

Juatlcm Stephen at 129 aald that alnce	the Act ir silent as to whether
It bind.	the Crovn in right of the Statea or any neceasary implication

to that effect, It ahould be taken as not blndlng the Conmissioner of

Railways uho was the relevant Crovn repreaentatlve In that case.

It l a thoa clmar that the Neu South -lea	State Crown	I s not bound by
the Act.

t r

As argued by the parties, the aubstantive isaues raised by the notices of motion are therefore:

1.       Were the Hlnisters instnmentalities, agents, representatives or

authorities of the Croun in right of New South Wales?

2.       If ao, does the imunity enjoyed by the Crown in right of the State extend to it1 agenta?

3.	Can injunctive relief by m y of section 80 of the Act be given
againat the firat reapondent without destroying the Imunity of

the State?

There can be no doet, and it n s not aerionnly argued to the contrary.

that the Mlnistera uere repreaentatives of the State Crown. That this

must be SO h8s amrged from a long line of cases. For Instance, In Bradken (above) it waa held that a Co.miaaioner of the Queensland Railways was a representative of the Crom (aee also Crouch v

Camiaaionmr For Eallnya (1985) 62 ALR 1). In Sharkey L CO Pty Ltd v

Fisher (19mO) 50 FLU 130, it uas held that the Metropolitan Water

Sewerage and Drainaqe Board uas an emanation of the Croun. By way	of
contrast, State Suporannlutlon Board v Trade Practlcea Commission

(1982) 60 165 est8blished that the Board, a Victorian statutory

corporation, uaa ao amparate and Independent from Government as not to

be entitled to the iPatmity.

It was subltted that the lmnunity enjoyed by	the State Crown extended
to the first respondent and that injunctive relief should	not be granted

on the basis that thia would prejudice the Crown who had acted through

its agent. Reliance vas again placed on Bradken (above) which also held

that the State iPPllnity mxtenda to the contractual arrangements made by

the State Croun with othera. Hason and Jacobs JJ said at 137-138 i n

Bradken (above 1 :

not only merate it fran the direct akllcation of the
statutory provlsiona but will also exonerate frun the application of those provisions the contracts arrangemnts or umbrshrdirqa rub by that Crown ami the other parties

thereto ar wll. "

The decisions in Roberfa v Ahem (1903-4) 1 CLR 406, Broken Bill Smelter

v Collector of Imposts (191E) 25 CLR 61 and In Re Telephone Apparatus

Hanufactnrera' Ap~llcation	(above) all held sinilarly. Consequently,	it
was sntmittad, thm m t y	of thm State Croun can	h avalled by others

who are not tho Crown if thm Impact	on them of an order under	the Act
will prejndiae the State Croun.
IUtto J defined the relevant	'prejur dice'	in Wynyard Investments v

Coriasionmr of Railways (1955) 93 CLR 376 at 393 as follows:

"Ordinarily, therefore, to hold that a given statutory

pmvirim bixla the Cmn Is to hold that it operates to
cbstroy or curtall or inplrir sam interest or purpose .....

O f the soureign U W conricbd. mere the llumnltyis

c h u m d by a eubject of the Crown, Mether an individual or a corporation, the question to be decided, whatever may be the languap in which for convenience it may be expressed, cannot really be &ether the subject is within a class of

dqurhmnts, organizations and persons generically	(and
loosely) described as the Crown. It must always	be whether

the operation of the provision upon the subject would man

sam U n p i m n t of the exlsting legal situation of the Sovereign. This I take to be conclusively shown by the

apechea, both of the najority anl of the minority,

delivered in the House of Lords, and the judgmmts delivered

in the Court of Appeal, in the case of	Bank voor Handel en
SOhWpvaaa N V. v Actninlstrator of Hungarian	Property
(1954) U: 584."

The Solicitor General therefore put that the interest at stake Is the

Interest of the Croun acting free of the Act.

In Bradken ( a b o v e ) Gibba ACJ said at 123-4:

"It of course f o W that the applicants cannot obtain the
relief ach tlmy rook spaiMt the CamUssionar, but can

they obtain the relief aought against the respondent

c a e s ? I have alrsculty pointed out that such relief, if

granted, vould imralldate transactions to which the
Cclmniaria~r is a pmrty. The first two claims are for

injunctions to reatraln the respldcnt canpanles concerned

frrm glm effect to the provisions of	contracts,
armngmmts or uarbrrtandinga to Wch the Ccamlssioner	vas

party. An injunction reetralning one of the parties to a

Cmltzact frml carpletlIlg it	affects not only the party
against Jbap it is m&; it equally affects the other	Paay
to the contzact. The third and fourth claims are f o r

inwims reatnlning wrtaln of the respondat cclrpanies

fw in the practice of axcluaive dealing, which,

accordlllg to the points of claim, consists in providing, or agreaug to prwlcb, finance and/or fimcial assistance to the Ccnmissioner on certain conditions. Those injunctions

if granted, will affect the Ccamisaioner as much as the

reapondent -ea. In other words, if the remedies

soupht are granted agalnat the respondant cclrpanies the
Caamiaelonsr will be prejudiced by the operation of the

Tracb Ractiwa Act jut M mch as if its provisions had been dlrectly enforced againat him.

In Clark v DDIlns (1931) 145 L.T. 20 at 22 Rmmr L.J. said:

'Ths Acts not birding the C m , it is the duty of

theCourt9 a o t o o o n r ~ t h e Acts that thecrom

affected by the Acta.'" and its prop* am in no way pjudlcially

In Sharkey	(above) Sheppard J at 150 stated, In Interpreting and
explaining Bradken	:

"Wmt I conrider than t o ham mMnt is that no relief will

b granted against a party to a contract, arrang-nt or

urdarstandinJ, t o which the C m or a body representing it

is also a party, if auch rellef would affect the efficacy or opra t ion of such agrstmtnt, a n a n g e n t o r understanding.
If it wre t o do so, the Crown would be p r e j d c e d because ono of its acts would thereby be affected. hhilst a l l

param haw freedan t o enter into such contracts,

amargamnts or u n l e n t a d l r g s ( m e s s they be prohibited by

l a w ) ar they m y chwae t o do, once any such contract,

ammgamnt or erstarding is entered into, the freedan of

such persona is affected. They are born, legally or nurally, t o act within the t e rn of the contract,

armrqmmt or mtanding whlch they haw made. To that extent the wry freedun WNch they had to contract , to make
anmgamnts or t o enter into mieratandingr has led t o a

situation where their freedan t o act becuma restricted.

The restriction w a d by the contract, arrarq-t or urdarstardlIlg into whlch they haw entered affects that

frwdm."

It follor8 frar thaae axpra8alon8 that an	Injunction cannot go t o any
peraon or corporation contracting ulth	a atatutorily mune Crown If the

intereat.	of tha Crom muld be adveraaly affected by the lnjunctlon.
The quaatlon here	l a uhethar preventing advertlalng	of Government

leglalatlon l a auch an adver8lty. Aa thla matter uaa argued as if it

uere not a twfold quaatlon, I m a t assume for the purpoaes of its reaolutlon, that tha advertiaing l a falae or mialeadlng, although I am certainly not to b. taken aa rklng 8uch a finding at thia stage of the case.

The Solicitor General suhPitted that the interests of the State Crown

extended to the Crown's being the judge of its own freedom of speech in

a matter of legitimate public debate such as the new Transcover and

Workcover legislation. Of courae sections	52 and	53 are designed to
prevent	the making of false and mialeading statements. If freedom	of

speech in taken, as it should not be, as meaning the right to say

anything anyuhere at any t-, and if the State Crown is rightly

entitled to claim it (and this is no time to rule on these questions), ita presence as part of Australian law is not to be found in the Act or in Inmunity therefrom. In the absence of a constitutional or statutory entrencbment of the freedom, or some appropriate provision of an

international covenant ratified by Australia extending to the States, to

vhich d m 8 t i c application ahould be given, the Solicitor General is

presllaubly calling in aid and quoting the copon lav. If	so.	immunity
from the80 proviaion8 of	the Act doe.	not eatabliah or provide the thus,

albeit urongly, defined freedom of speech of the New South Wales

State Crom, imcau8e as I understand the position, the coumon law

itself and other M W South Wales legislation place their own

restrictions on both the State's	and the first respondent's 'freedom of
speech'	to .ulro falae or anleading statements.
This is not the place to ex8mine and debate these interesting questions,	because it in not the right to freedom of speech in a free society that
deteminea the perri8sibility of a person or entity, or even the State,
to mislead or tell untruths to the public. Mor do any of the
authoritlea referred to by the Solicitor General say that any
restriction on a pxson's capacity to advertise deceptions is a
curtailment of freedom of apeech. I repeat that I am of course making
no finding that anything in the advertiaementa is misleading or
untrue. I mrely aaaume it. as I must, to test and rule on the
propomition being advanced. In my view, the clarifying dictum of
Sheppard J in Sharkey demonmtratea, with his Eonour's characteristic
explanatory skill, that it is not the human rights of Cabinet Ministers
or Governments that are under dimcussion in Bradken but the survival or
imunity of private individuals' contractual or other arrangements or
understanding8 - in this caae of a conmercial character - with State
Governments. It la these persons or entities who are the recipients or
beneficiaries of the Croun'8 Imunity from the Act's restrictions or
impedlmentm .
In my vier , the Bradken extension of immunity ahould not be further
extended into social and humanitarian spheres. It is confined to
c m r c i a l , contractual and mirilar activities of the immune Government
vhere re8triction of 8otion would directly Impinge on or derogate from
the freedom of the State from the Act's reach.
SUBMISSIOIJS OF APP'LICAWTS
The applicmtm did not dispute that the Elgh Court decision in Bradken
bound by the Act. B0wev.r. they sought to distinpuish it by aubmitting
la bi-ng
upon U and therefore that the Heu South Wales Crown is not that the Crom in the right of the State of Uer South Wales la not a party to these proceedings. I have already ruled against one aspect of this sutalasion.
The applicantm further argued that the extended Bradken rule only
apQlieS to came8 rhere the contract rith Government involves the
carrying on of g m m m t buslnems. Conaequently the real question to Con8ider. the appllcantm maid, is whether the granting of the relief
sought by the applicant could prejudice, destroy, curtail or impair
business activity which la part and parcel of a Crown function. In the
context of this case there uas a need, the applicants submitted, for the
relevant advertising and contractual arrangements to have been
authorised by the Government.
The applicants snhitted that the publiahing of misleading advertising is clearly not an authorised function of the Government. In South
Australia v The C m n w a l t h (1942) 65 CLR 373 at 423 Latham CJ stated
that there are a- functions of Government which have always been
regarded as auch whereaa others only become so if Parliament authorises
them. Obviously uhat must ba examined Is the nature of the business and uhethar it can ba classified as being within the ambit of Government
activity or is the private busineas of the relevant government
rapresmntativma. Attention uas dram to UcDonald v Eamence (1984) 53
m 136 at 141 where Heaves J, with the benefit of many years of pre-
judicial senior Govemunt service stated:

%re M q activities in the ordinary course of

adulnirt.rirq ths affaln O f guvenmwnt that m y be carried 011 -tly of any statutory pmvision qessly or

to cum aide for present purposes the need for pnrliammtary	lnpLldly authorizing the pnrticular activity. me m y put
appmpriation of to met any necesaazy expenditwe. I do not bbt that the activities of the Canberra Tourist Eureau In phllshing pbriodically a list of accamdation facilities In Canhrra and in nmkirq the necessary decisions
as to what Monmtion such publications should contain are activitiea ohich do not require sxpress or iaplled statutory
authoritv. In t h i s raaard it is sufficient to refer to the
hision- of mx J -in m-r Pacific pty Ltd vmeland
(1983) 52 X R 185, referring to New South hh les v Bardolph
(1934) 52 tXR 455 at 474-5, 496 ard 508. "

Clearly it canuot be maintained that the authorising of these advertismants and the hiring of the first respondent as advertislng

agent m s private businera of the Hlnisters. There is simply no

evidence of any private interests of theirs involved	or addressed in the
advertlalng of the Tranacovar and Workcover legislation.	In my opinion,

the Wniaters were obvioualy acting in an official capacity and on

behalf of the State Government when they authorised the first respondent

to publish the advbrtlaemnta.

The applicant. further contended that the Nlnlsters or any of the

officers of their deparmnts did not have the legislative authority to order the placing of the advertiaamanta In the presa and on television. Thla view held that to say that the relevant contract vas authorised by

a Nlniater la not amfficiont. In Mew South Wales v Bardolph (1934-35)

52 CLR 455,	Stark8 J at 502 atated that	the fact that a Minister has
entered into a contract	or directed a subordinate official to	do so is

not aufficlant to eatabliah the neceaaary authority:

" me Cmn is CbpBhnt upon the q l y granted to it by

h r l i m t , and there is an -sa	or -lied	tern in its
contracts tlnt	PI-t	&all be Irda out O f mmys so

m. But tb. ~ r of the t contract is not ~

dtional upon Parlitamntxuy authodty, or upon pmasion

of M by mlimrmt for the performance of the contract.

m vi= that it 1s K, conditional is entirely contrary to

D@ish pxactico, ami to a line of cases, collected in

p.337. (W RvDoutre (1884) 9 Pgp Cas. 745;

I h Y n r V T h r X i I 4	(1930) N.Z.L.R.441). bmvar, it is in
qQositlaa to th.	sf.tamnt of th. Judicial Cclmrittee in R v
Rahu (1903) A.C. at p.167. ConstitutioMl practice,	a s i n

1 - Cable Cue (1916) 2 A.C. 610, or statutory

p r w i E i a M , aE in (3NIrchwcd's Case (1865) L.R. 1 Q.B. 173

or mckay's Case (1'92) 1 A.C. 457, m y prescribe conditions

premdmt to the rmkjrg of contracts with the Crown, and so

far aa tb.r aditiona exist they mat be obsemed. mt othervine omtracta on behalf of the C m by its

officers or s e n m t a in tha established course of their

authority ad chty are Crorn contracts, and as such bind the

&firm3 by c#nntitutioMl practice or urprsss instructions ,	Cron. The M- and extent of the authority m y be
or inferrd fran tha M ~ U M of the office or the duties mtruatd to tha particular officer or s e m t . It is not
mry contract nub orpurported to havabeenrrade by an
officar or a e m t of the Qon on its behalf that will bind the Cron, but only auch as are within the authority dohgatd to that officer or servant. The authority is a
matter which ultimately falls for dotenrdnation in the
Courts of law (800 ~sgrava vPul& (1879) 5 App Cas 102). The fact that a Pranier, or a responsible Minister of the Crown, has entered lnto a contract-on the part of the Crown, or has directed a subordinate official so to do by no means
estabUshes the necessary authority: such a role, while it
might not destroy Parliarmntary control over the auount and
mammr of e x p d i t u n , of public mney, vould necessarily
weaken that control. In each case, the character of the transaction, and also constitutional practice, must be
considered. "

On the other hand, Dixon J at 509 in the aame	caae said that statutory
authority la not needed to make a valid contract which binds	the Crown.
On the question of authority to enter contracta.	reference vas made to
sectiona 12 (1)	and 4 (l) of the Public Finance and Audit Act 1983 (NSW)
a8 to who can enter contracta and incur expenditure on behalf	of the

executive. Section 4 (1) of the Public Service Act 1979 (NSW) was also

relied on to e8tabliah the purported authority of Government departments
to enter contracts. The applicant8 further aubaittsd that when a
Government department la given acGe88 to certain moneys, they must be
u8ed in the nanner in which the department la authoriaed to spend the

money. Con8equently. it vaa maintained that the apending of Government money to riainforr the public la not within	the authority of a
Government doprrtmmnt.

argrwnt8. Thi8 application 88ekS an injuction to reatrain the Ministers	There la no direct evidence to 88tabliSh the baaia for any of these	from permitting particular adverti8amenta to be aired in public, not
department8 from undertaking or authoriaing expenditure or entering
contracta on behalf of the Government. Yet there la for example no
evidence am to if, how, by whom or from what fund the first respondent
uaa paid for it8 work or the adverti8amanta were otherviae paid for.
Eomver, I am 8atiafied that the Klniatera were authorised to engage the
first re.pandent and approve the appearance of the advertisements. The evidence aatisfiea W that the advertisements were authorised by the
Ilinistera in their official capacities and there was no cross
examination to eatabliah any other bash for their actions. Further,
the explanation and promotion of Government-sponsored legislation are,
it seems to me, legitimate functions of Government in ordinary
circumatances.
FURTHER ISSUES - AID- ZLHD ABETTING
It vaa further claimed by the applicanta that the first respondent
should k, reatrainad, purauant to aectiona 75B. 79 and 8 0 of the Act, from aiding and abetting the Miniatera in the commission of an offence by engaging in the colduct of instructing the publication of deceptive or mialeading adwrtiamnts. I reject this argument for which no
authority r a s cited. In ly vleu the firat reapondent vas acting
OIItirEly a# an agent of and Under the prerlmably contractual
instructions of the Government in devising and placing the
advertia.mt8 for which it had no other responsibility. Again
assuming, without finding, that the tvo advertiaementa are in fact
misleading or deceptive, I do not kl i eve that the firat respondent's activity muntd to the mepmrate offence of aiding and abetting
then p r e a e offence of misleading or deceptive conduct. In any event the
the firat rm8pond.nt c8n no m r e h held liable under the Act for any
falsitiea or mialeadlng or deceptive featurea of the advertisements than
can the Ninister8 thOm80lve8. If the Iliniatera are not bound by the
Act, they can c m t no offences under it. I cannot see how someone
else can then c m t the offence of aiding and abetting a non offender
in not c m t t i n q the principal offence.
The applicants also	put the reverse argument -	viz. that the Ministers

were aidlng and abetting the cormnission of an offence under the Act by

their agents the first respondents and, as I understand it, by the

newspapers and television stations	who were going to publish	the
advertismnts.	They pointed in this latter connection to the words	of

section ao(l)(c) where reference is made to aiding and abetting "a

person' (presumably another person) to comit an of ence, as

demonstrating that the second person does not have to be a person before

the court and could in this case for example be the newspapers or

television stations.

In my v ier both these rubaissions also fail. All the relevant "persons"

are before the Court. The first respondent is said to be comtting the

offence and the Hinistera are the alleged alders and abettors. I do not

believa tb8t the first respondmnt has committed any offence at all. In

the circumstances of this case, they are not subject to the Act. The

Illnisters cannot c a t any offence under it nor specifically can they

aid and abet a non offender.

An rmgard. the publishmrs or proposed publlshers of the advertising, the applicants rm1i.d upon the decision of Phelps (above) where it was held that those rho caused rimleading advartising to be published, not being

the neuspaprs, could h dealt uith under section 52. Eowever, upon	a
close reading of	the decision, it seems to me that the real issue before

the court was thm locus standi of the applicant. Upon determining this

issue, the court alloued the case to proceed against those who had

caused thm adwrtising to be published.	The court did not address the
question of uhether an aider 8nd abettor may	be found to have comtted

an unlauful act notdthstanding that the person whom it is alleged vas aided and abetted could not be found to have colamitted an offence becauae that peraon uaa not bafore the Court and the matter had never

been tried. In any event the publiahers in this case would, it seems to

me, be protected from injunction under the	Act for the same or similar
rcaaons a8 the firat respondent.

In R v Darby (1981-82) 40 U 591 the Eigh Court held that one

conmpirator may be guilty even if the other or others are acquitted.

That difficult deciaion, however, doea not compel me to find that an aider and abettor m y be found guilty uhen the principal offender IS acquitted, even by operation of lau alone. I therefore reject this

argument.

My conclu8iona. tharefore, on tho iaauea here ralaed are:

1.	Tha Trade Practicem Act	doe.	not bind the Crown in the right of
a State.

2. The Ylniatara are repreaentativea of the State Crown and are

thorofore not bound by the Act.

3.       Their irnnity f r a the Act extends to commercial contractors

u l t h the State Crovn, reatrictiona on whom would adversely

affect the rlghtm and intereat. of the Croun.
4 .	The -1ty also extendm to exclude both the Hiniaters and the
corp.rci.1 contractor being found to be alders and abettors of
tha coritting by the other or by further contractors uith either,of any offenca againmt the Act.

The application la therafora diamiaaed with costs, including the costs

of the aacond reapondent up to the time of their dismissal from the

suit.

I certify t h 3 !b.;

and the S E V E U T ~ ~ . ~

preccdjt?g p - g ~

2:s a tlue cc;y

cf the

Pelsons f6r J:~d-~nent

herem of

h 6 Honour

Mr. Justlce Elnfcld

I

Asscc'ate

I c/ycvwLnA i

.

Counsel and Solicltors	M Bainton, QC
for the applicants	and M Stowe, QC with Mr Douglas
and M Ellis
instructed by Phillips Fox Solicitors
Counsel and Solicitora	Mr Eunter, QC
for the first respondent	with M Sullivan instructed by Dawson Waldron Solicitors
Counsel and Solicitors	Mr Wason, QC
for the third and fourth	Solicitor General for New South Wales
respondents	with M Sackville and

M. B. Walker

instructed by
Crown Solicitor

Date of Bearing	25 May 1987
Date of J-nt	23 May 1988