Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission

[1982] HCA 65

HIGH COURT OF AUSTRALIA

Gibbs C.J., Mason, Murphy and Brennan JJ.

PIONEER CONCRETE (VIC.) PTY. LTD. v. TRADE PRACTICES COMMISSION

(1982) 152 CLR 460

11 November 1982

Trade Practices

Trade Practices—Trade Practices Commission—Powers—To require information to be furnished and documents produced—Civil proceedings pending in respect of same matter to &hich Commission not party—Whether power exercisable—The Constitution (63 &Vict. c. 12), Ch. III—Trade Practices Act 1974 (Cth), ss. 155(1), (7), 157, 159.

Decisions

November. 11.
The following written judgments were delivered: -
GIBBS C.J. The question for decision on this appeal is whether the power given by s. 155 of the Trade Practices Act 1974 (Cth) as amended, ("the Act") to a member of the Trade Practices Commission, by notice in writing to require any person to furnish information or produce documents relating to a matter that constitutes or may constitute a contravention of the Act may be exercised at a time when proceedings are pending in the Federal Court in respect of the very conduct to which the notice refers, but the Commission is not a party to those proceedings, and it is not suggested that the notices have been given as an aid to or for the purposes of those proceedings. For the reasons which I am about to give that question must in my opinion be answered in the affirmative. (at p463)

2. Section 155(1) of the Act provides as follows:

"Where the Commission, the Chairman or the Deputy Chairman has reason to believe that a person is capable of furnishing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of this Act, or is relevant to the making of a decision by the Commission under subsection 93(3), a member of the Commission may, by notice in writing served on that person, require that person - (a) to furnish to the Commission, by writing signed by that person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, any such information; (b) to produce to the Commission, or to a person specified in the notice acting on its behalf, in accordance with the notice, any such documents; or (c) to appear before the Commission at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents."

By sub-section (5) of s. 155 it made an offence to refuse or fail to comply with a notice under the section. By sub-section (7) it is provided as follows:

"A person is not excused from furnishing information or producing or permitting the inspection of a document in pursuance of this section on the ground that the information or document may tend to incriminate the person, but the answer by a person to any question asked in a notice under this section or the furnishing by a person of any information in pursuance of such a notice, or any document produced in pursuance of such a notice or made available to an authorized officer for inspection, is not admissible in evidence against the person - (a) in the case of a person not being a body corporate - in any criminal proceedings other than proceedings under this section; or (b) in the case of a body corporate - in any criminal proceedings other than proceedings under this Act."

Section 159 provides as follows:

"(1) A person appearing before the Commission to give evidence or produce documents is not excused from answering a question, or producing a document, on the ground that the answer to the question, or the document, may tend to incriminate him.

(2) Evidence given by a person before the Commission is not admissible against him in any criminal proceedings other than proceedings for offences against this Part." (at p464)

3. In the present case the contravention alleged is a contravention of s. 45 of the Act, which exposes the persons who have contravened the section to penalties but not to criminal proceedings: see ss. 76 and 78 of the Act. It is said that it is possible that the applicant in the pending proceedings (whose interest is adverse to the persons to whom the notices were given) may be able to obtain from the Commission the information and documents furnished to it in compliance with the requirement under s. 155 and use them in evidence in the proceedings against the persons compelled to furnish them, notwithstanding that it might not have been possible for the applicant to obtain that information or those documents by way of interrogatories or discovery in the proceedings. (at p465)

4. There is nothing in the words of s. 155 themselves that suggests that the power which that section confers comes to an end once proceedings have been begun by some person unconnected with the Commission, even if in those proceedings there is a claim for damages caused by the conduct, or for an injunction to restrain the conduct, which constitutes the contravention or suspected contravention in relation to which a notice is sought to be given. In the nature of things, there is no reason why the power given to the Commission should be affected by actions taken by persons over whom it has no influence or control. If the power were denied to the Commission simply because someone else had commenced proceedings in respect of a matter sought to be inquired into, the proper exercise of the Commission's functions might easily be frustrated. (at p465)

5. Two arguments were advanced in support of the appellants' submission that the institution of proceedings in respect of an alleged contravention of the Act had the effect that the powers given by s. 155 could no longer be used to obtain information or documents in relation to that alleged contravention. (Section 155 also gives a power to require the person to whom the notice is addressed to appear before the Commission to give evidence, but that power was not exercised in the present case.) In the first place, it was said, the section, if it had that effect, would constitute an invalid attempt to confer judicial power upon the Commission. That submission, which, with all respect, is quite untenable, was inspired by some remarks in Appleton v. Moorehead (1909) 8 CLR 330 and Melbourne Steamship Co. Ltd. v. Moorehead (1912) 15 CLR 333 . Those decisions were concerned with s. 15B of the Australian Industries Preservation Act 1906-1909 (Cth), which conferred on the Comptroller-General of Customs a power rather similar to that conferred by s. 155(1)(a) and (b). In the former case the notice under the section had been given before any judicial proceedings had been commenced, but it was argued that the section authorized compulsory discovery in aid of criminal proceedings for offences, and that such discovery, being ancillary or incidental to an intended exercise of judicial power, was itself an exercise of that power, and therefore invalid because not conferred on a court. The whole Court upheld the validity of the section (1909) 8 CLR, at pp 354-358, 366, 379-380, 384-385, 418 . In the latter case it was held (by a majority) that when the Attorney-General had formally instituted a prosecution in respect of an alleged offence against the Australian Industries Preservation Act, the power conferred by s. 15B was exhausted so far as regards the persons whom the Attorney-General alleged to have committed the offence for which he prosecuted, whether those persons were made parties to the suit or not. (at p466)

6. The appellants in the present case selected three passages in particular as providing support for their arguments. In Appleton v. Moorehead (1909) 8 CLR, at pp 379-380 , O'Connor J. said:
"When the Comptroller makes his requirement under s. 15B there can be no proceedings pending in a Court. He is not empowered to use the section with reference to an offence when once it has been brought within the cognizance of the Court. The power to prevent any such interference by the Executive with a case pending before the ordinary tribunals is undoubtedly vested in this Court by the Constitution."
The first two sentences in this passage merely state the effect of the section on its proper construction and the third sentence supports this construction by indicating that if the power were used once a prosecution had been commenced there might be an interference with the course of justice in the tribunal in which the prosecution was pending. However, O'Connor J. in that passage does not suggest that such an interference would be an exercise of judicial power; rather he suggests that it might amount to a contempt of court, as indeed it might if the powers were used to extract information for the purpose of aiding a prosecution already instituted. In Melbourne Steamship Co. Ltd. v. Moorehead (1912) 15 CLR, at p 341 , Griffith C.J. said:

"In my opinion, when the Attorney-General has formally instituted a prosecution in this Court in respect of an alleged offence, the power as well as the purpose of sec. 15B is exhausted so far as regards the persons whom the Attorney-General alleges to have committed the offence for which he prosecutes, whether they are made parties to the suit or not. From that time the matter becomes subject to the judicial power, or, to adapt a familiar phrase, transit in litem pendentem."

Again, in my opinion, the learned Chief Justice was suggesting, not that, when the matter had become subject to the judicial power, the use of the power given by s. 15B to obtain information would itself be an exercise of judicial power, but that it might constitute an interference with the exercise of judicial power. Barton J. (1912) 15 CLR, at p 346 said:

"If sec. 15B were read as an interference with judicial proceedings, it would be an exercise by the legislature of a power vested by the Constitution in the judiciary."

This remark was, I think, made per incuriam; it cannot be taken literally. (at p467)

7. An inquiry into facts which are the subject of pending proceedings is not necessarily an exercise of judicial power. Inquiries may be made for executive or for legislative purposes. Griffith C.J. said in Appleton v. Moorehead (1909) 8 CLR, at pp 357-358 :

"With regard to the argument that, since it is the general practice to entrust the interrogation of witnesses to judicial tribunals that function must be regarded as an exercise of judicial power, I think that both the premises and the inference are faulty. Many such interrogations are no doubt so entrusted, but many others, relating to matters of administration, are entrusted to other authorities. And I have already shown that in the most nearly analogous case the function, although entrusted to persons who for other purposes exercise judicial functions, is not regarded as itself an exercise of such functions."

This passage is quite opposed to the argument now submitted by the appellants. The inquiry in the present case is made for administrative purposes: to enable the Commission to decide whether there is sufficient evidence to enable it, or the Minister, to institute proceedings. Under s. 155, the Commission can do no more than gather information; it cannot make a determination as to the facts, or apply the law to them, in any way that is binding, authoritative or coercive. The power given by s. 155 is not a judicial power. (at p467)

8. The second argument submitted on behalf of the appellants is that the power given by s. 155 permits interference with pending judicial proceedings. No doubt it is right to say that the power conferred by the section might in some cases be used so as improperly to interfere with judicial proceedings. I incline to think that if the power were used to assist a party in proceedings already pending, in a way that would give such a party advantages which the rules of procedure would otherwise deny him, there would be a contempt of court. As at present advised I would agree with the decision in Brambles Holdings Ltd. v. Trade Practices Commission (No. 2) (1980) 44 FLR 182; 32 ALR 328 . However, not every investigation into facts which are the subject of pending proceedings constitutes a contempt of court: see Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25 , and the authorities there discussed. In the present case it was not shown that the person who gave the notice had any intention to interfere with the course of justice, or that there was a real risk that the exercise of the powers under s. 155 would in the circumstances have that effect. The power is a drastic power and is capable of abuse and must be exercised with care. However it was not shown that its exercise in the present case would amount to a contempt of court. (at p468)

9. It is unnecessary to decide whether the applicant in the proceedings which allege a contravention of s. 45 of the Act could obtain from the Commission and put in evidence information and documents obtained by the Commission under s. 155. Certainly it would seem an abuse of the power given by s. 155 for the Commission to use material obtained under that section for a collateral or ulterior purpose (cf. Home Office v. Harman (1983) AC 280, at pp 299-300, 302 ) as by voluntarily communicating it to a litigant in proceedings to which the Commission was not a party. It is possible that such a litigant might learn, from sources other than the Commission, that the Commission had the material and might then issue a subpoena duces tecum to the Commission, but the speculative possibility that some such thing may occur is not enough to justify the Court in holding that the exercise of the power under s. 155 is a contempt. (at p468)

10. In the argument for the appellant it was suggested that the provisions of s. 157 of the Act are set out in an order which indicates that it was not intended that a notice would issue under s. 155 after proceedings in a court had commenced. With all respect however I can see nothing in s. 157 which affects the power of the Commission under s. 155. (at p468)

11. For these reasons in my opinion the appeal should be dismissed. (at p468)

MASON J. The issue here relates to the power of the Trade Practices Commission ("the Commission") to issue a notice under s. 155 of the Trade Practices Act 1974 (Cth), as amended, ("the Act") requiring the persons on whom it is served to give information which is relevant to proceedings pending under the Act to which those persons are parties. (at p469)

2. On or about 5 June 1980 each of the appellants was served with a notice dated 3 June 1980 signed by the second respondent, the Acting Chairman and a member of the Commission. Each notice asserted that the second respondent had reason to believe that the person to whom the notice was directed was capable of furnishing information and producing documents relating to matters that constituted or might constitute contraventions of s. 45 of the Act, namely:
". . . that during and since 1978 PIONEER CONCRETE (VIC.) PTY. LTD. (hereinafter referred to as 'the company'), THE READYMIX GROUP LIMITED, APEX QUARRIES LIMITED, BARRO GROUP PTY. LIMITED and BORAL RESOURCES (VIC.) PTY. LTD. have -
(a) made contracts or arrangements or arrived at understandings, provisions of which had the purpose, or would have had or be likely to have had the effect of substantially lessening competition; and (b) given effect to the provisions referred to in (a) above, in that those provisions had the purpose, or would have had or be likely to have had the effect of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of -

(i) the price for pre-mixed concrete supplied and delivered in Melbourne; or (ii) the shares of the market in Melbourne for the supply and delivery of pre-mixed concrete held,

by the corporations named above, (or by bodies corporate related to them), in competition with each other . . ."

Each notice required the person to whom it was directed to furnish to nominated members of the Commission's staff the information set out in a schedule to the notice and to produce the documents specified in another schedule. (at p469)

3. The content of each notice was subsequently varied but this circumstance may be ignored as nothing turns upon it. (at p469)

4. Before service of the notices proceedings in the Federal Court had been instituted by Ro-Mix Concrete Pty. Ltd. against the two corporate appellants and the three other companies mentioned in the notices. The Ro-Mix proceedings were instituted on 13 December 1978. In its statement of claim Ro-Mix alleged that the five companies, including the two corporate appellants, had contravened s. 45 in terms which are identical in substance to the description of the "matters that constitute, or may constitute, contraventions of section 45" which appear in the notices served upon the appellants. Issue was joined in the Ro-Mix proceedings. In those proceedings the plaintiff seeks injunctions restraining the five companies from giving effect to the contract, arrangement or understanding which is said to contravene s. 45, and damages. The respondents were at all relevant times aware of the Ro-Mix proceedings and of the allegations made in the statement of claim. However, it is not suggested that they were attempting to use the power conferred by s. 155 of the Act as an aid to, or for the purposes of, the Ro-Mix proceedings. (at p470)

5. Section 45(2)(b)(ii) of the Act provides that a corporation shall not give effect to a provision of a contract, arrangement or understanding, which provision has the purpose, effect, or likely effect, of substantially lessening competition. Contravention of s. 45(2), though not constituting a criminal offence, renders the contravener and any accessory liable to a pecuniary penalty not exceeding $50,000 in the case of a person, or $250,000 in the case of a corporation (s. 76). Civil proceedings for the recovery of the penalty may be instituted only by the Minister or the Commission (s. 77). A person who suffers loss or damage by reason of such a contravention may recover the amount of the loss or damage by action in the Federal Court against the contravener or any person involved in the contravention (s. 82). The Minister, the Commission or any other person may commence proceedings for an injunction restraining a contravention (s. 80). (at p470)

6. Section 155(1) provides that where the Commission, the Chairman or the Deputy Chairman has reason to believe that a person is capable of furnishing information, producing documents, or giving evidence relating to a matter that constitutes, or may constitute, a contravention of the Act, a member of the Commission may, by notice in writing served on that person, require that person:
"(a) to furnish to the Commission, by writing signed by that person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, any such information;
(b) to produce to the Commission, or to a person specified in the notice acting on its behalf, in accordance with the notice, any such documents; or (c) to appear before the Commission at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents". (at p470)

7. Section 155(3) provides that the Commission may require the evidence referred to in paragraph (1)(c) to be given on oath or affirmation and that, for that purpose, any member of the Commission may administer an oath or affirmation. Section 155(5) prohibits a person from refusing or failing to comply with a notice under the section to the extent that the person is capable of complying with it or from, in purported compliance with such a notice, knowingly furnishing information or giving evidence that is false or misleading. The maximum penalty for contravention of this sub-section is a fine of $1,000 or imprisonment for three months. For convenience I shall refer to the power conferred by s. 155(1) as a power of the Commission. (at p471)

8. At first instance Lockhart J. held that the second respondent lacked power to issue the notices which were served on the appellants and that service of the notices constituted a contempt of court. His Honour, having found that the appellants acted throughout in good faith, did no more than order that they pay the costs of the proceedings as between solicitor and client. (at p471)

9. On appeal, the Full Court of the Federal Court considered that the issue and service of the notices did not amount to an exercise of judicial power or an interference with the exercise of judicial power by the Federal Court in the Ro-Mix proceedings. The Full Court found that as a matter of construction the power conferred by s. 155 extended to the issue and service of the notices and that, accordingly, there was no contempt on the part of the Commission in issuing or serving them. (at p471)

10. The appellants' case is that s. 155 has to be read down so that the power which it confers is no longer exercisable after proceedings under the Act for a penalty have been instituted - the construction favoured by Lockhart J. The principal argument in support of the appellants' contention is that if the power be unlimited then it constitutes an invalid attempt to confer the exercise of judicial power on the Commission and it permits interference with pending judicial proceedings. The absence in s. 155 of any power to decide or determine a dispute between parties - the central element in the exercise of judicial power - might be thought to be an overwhelming answer to the argument that there is an attempt to confer judicial power on the Commission. (at p471)

11. However, it is suggested that if the Commission requires information to be given for the purpose of obtaining evidence in a matter before the Court then it is exercising judicial power. According to Holmes J. in Prentis v. Atlantic Coast Line (1908) 211 US 210, at p 227 (53 Law Ed 150, at p 159) , "The nature of the final act determines the nature of the previous inquiry". But this does not mean that because the determination ultimately made by the Federal Court in proceedings in respect of a contravention of the Act is an exercise of judicial power the issue and service of the notices is itself such an exercise. Holmes J. was merely saying that the character of the order or final decision made by a tribunal will determine the character of the inquiry which precedes its decision, so that if its determination is a judicial order then its inquiry will constitute an exercise of judicial power. Reg. v. Davison (1954) 90 CLR 353 was just such a case. This is not to say that it is legitimate to characterize the nature of the power exercised by the Commission under s. 155 by reference to the judicial power which the Court exercises when it hears proceedings for a penalty under the Act. What the Commission does will produce information which may be presented in evidence by a party in proceedings in respect of a contravention under the Act, but this is no basis for saying that there is an exercise of judicial power on the part of the Commission. The exercise of a power to compel the provision of information is not inherently such an exercise. It may constitute an element in the exercise of judicial power when the power is part of the proceedings of the court, its object being to aid the court or the parties to obtain and present evidence in those proceedings. Then the exercise of the power by the court or the parties in proceedings in the court is for the purpose of enabling the court to hear and determine the lis and is, accordingly, incidental to, if not an element in, the exercise of judicial power. (at p472)

12. Section 155 stands in high contrast. It is a power given to the Commission, not to the Court. Accordingly, it is not a power which is an element in the proceedings of a court. Its purpose, and this will have a bearing on its construction, is to aid the Commission in the discharge of its functions under the Act. These functions include the investigation of alleged breaches, the acquisition of information and the obtaining of evidence for submission to the Court in proceedings in respect of contravention. There is nothing in the nature of the power, nor in its terms, to suggest that its sole, substantial or immediate object is to aid the Court in its function of hearing and determining cases. Of course, a legitimate exercise of the power, one designed to enable the Commission to discharge its statutory functions, may yield information which the Commission presents in the form of evidence in proceedings in court. But this connexion with the court proceedings is consequential and altogether too remote to enable us to say that the power is incidental to the exercise of judicial power. (at p472)

13. What I have already said is an answer to another argument, namely, that once a court begins to exercise the judicial power in relation to a particular matter it has the exclusive right to exercise, or control the exercise of, the functions which form part of that power or are incidental to it. As we have seen, s. 155 is not part of the judicial power; nor is it incidental to that power. (at p473)

14. The possibility that the Commission could in exercising the power conferred interfere with court proceedings raises problems of a different order. A statute expressed in general terms should not be construed so as to authorize the doing of any act which amounts to a contempt of court. The comment of Fullagar J. in Lockwood v. The Commonwealth (1954) 90 CLR 177, at p 185 that "what is expressly authorized by or under a statute" is not a contempt was directed to a statute authorizing the issue of Letters Patent directing a particular inquiry; the comment has no application to a statutory power which is expressed in very general terms, there being no indication in the terms that Parliament contemplated the committing of what, but for the statute, would otherwise amount to a contempt of court. (at p473)

15. Section 155, cast as it is in general terms, does not address itself to the question of contempt of court. It should therefore be read as not authorizing any action on the part of the Commission which would amount to such a contempt. Whether this leads to the conclusion that any action by the Commission which amounts to a contempt would necessarily stand outside the power which the section confers is a larger and more difficult question. It is possible to read the section as conferring power on the Commission to act in accordance with its terms, but subject to the law of contempt, so that action taken under the section is subject to the exercise by the Federal Court of its contempt powers. This appeals to me as a more sensible construction of the sub-section, one which avoids locating the ambit of the power at the point, not readily identifiable, where contempt begins. There are advantages in keeping questions of power and contempt separate. (at p473)

16. To arrive at this conclusion does not advance the appellants' case. It remains for them to show that the issue and service of the particular notices was either beyond power or a contempt. The appellants may perhaps be right in criticizing the view expressed in the Federal Court that the power may be exercised at any time before the Commission commences a prosecution. It may be that in some instances the issue of notices requiring persons to attend and give information at a time when they were required to attend in court and give evidence would amount to a undue interference with the exercise of judicial power and, consequently, stand outside the authority conferred by the section or, as I would prefer to express it, amount to a contempt. (at p473)

17. But this is very distant from the present case. Here there is no reason to suppose that the Commission seeks information for other than a legitimate reason, that is, to perform its functions under the Act. The very existence of the Ro-Mix proceedings poses the question whether there has been a contravention of the Act. It is a question which the Commission has a statutory obligation to investigate. The issue of a s. 155 notice is an obvious mode of investigating the matter. There is no evidence to support an inference that the Commission in issuing the notices is concerned to assist the parties in the Ro-Mix proceedings, rather than to investigate for itself the question whether there has been a contravention of the Act. It may be that the plaintiffs in the RoMix proceedings will subpoena such answers as may be given in response to the notices and tender them in evidence as admissions in those proceedings. But I cannot see how this use of the material demonstrates that the issue and service of the notices is for a purpose foreign to the Commission's functions, is otherwise beyond power or is a contempt. (at p474)

18. So far I have not mentioned the decisions of this Court in Appleton v. Moorehead (1909) 8 CLR 330 and Melbourne Steamship Co. Ltd. v. Moorehead (1912) 15 CLR 333 . Neither case, it seems to me, is decisive of the present case. Agreeing as I do with the analysis made by Deane J. in the Federal Court of the judgments in the two cases, I have no need to repeat what his Honour said. As it is, I share his Honour's difficulty in appreciating the significance of all that was said in the judgments, especially the notion expressed by O'Connor J. in Appleton (1909) 8 CLR, at pp 379-380 and Barton J. in Melbourne Steamship (1912) 15 CLR, at p 346 that the service of a notice under s. 15B of the Australian Industries Preservation Act 1906-1909 (Cth) can in certain circumstances amount to the exercise of judicial power. And I do not accept the suggestion made by Barton J. in Melbourne Steamship that once the subject matter has passed into the hands of the courts it is immune from legislative and executive action. Certainly there are constraints upon such legislative or executive action, arising from the contempt powers of the Federal Court and from the provisions of Ch. III governing the judicial power. How far these constraints may go is not an issue which we need determine now. (at p474)

19. In the result I would dismiss the appeal. (at p475)

MURPHY J. The Trade Practices Commission cannot be vested with any part of the judicial power of the Commonwealth (Reg. v. Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 ). Section 155 does not encroach upon the judicial power and is valid: service of notices under the section is not a purported exercise of the judicial power. The statements by O'Connor J. in Appleton v. Moorehead (1909) 8 CLR 330 and by Barton J. in Melbourne Steamship Co. Ltd. v. Moorehead (1912) 15 CLR 333 that service of notices under s. 15B of the Australian Industries Preservation Act 1906-1909 could amount to exercise of the judicial power, were erroneous. Executive power including that conferred by s. 155 cannot validly be exercised so as to interfere with the exercise of the judicial power of the Commonwealth. The s. 155 power is subject to the usual unexpressed conditions which require it to be exercised in good faith, for the purposes for which it was conferred, and with due regard to those affected. It is also subject to the overriding control of the courts enabling them to ensure the proper administration of justice. It cannot be used validly to commit contempt of court. The record does not show any contempt by the Commission. (at p475)

2. The question whether the Commission can, after it has commenced a prosecution, serve notices under s. 155 in relation to the issues which arise in the prosecution, does not arise, and I express no view. (at p475)

3. The appeal should be dismissed. (at p475)

BRENNAN J. This is not a case where a notice has been issued in purported exercise of the power conferred by s. 155 of the Trade Practices Act 1974 (Cth) for the purpose of obtaining information for use in proceedings already commenced by the Commissioner against the person to whom the notice is directed. The question whether s. 155 empowers the Commissioner to issue a notice for such a purpose does not arise in this case and I should therefore wish to reserve consideration of that question and the associated question of contempt of court - both of which were considered by Franki J. in Brambles Holdings Ltd. v. Trade Practices Commission (No. 2) (1980) 44 FLR 182; 32 ALR 328 - until they are raised for decision in this Court. (at p475)

2. For the reasons stated by the Chief Justice, I agree that the proceedings instituted by Ro-Mix Concrete Pty. Ltd. against the corporate appellants and other corporations provide no ground for denying the validity of the notices directed to the respective appellants and referred to in the statement of claim. (at p475)

3. The appeal should be dismissed. (at p475)

Orders

Appeal dismissed with costs.