Precision Data Holdings Ltd v Wills

[1991] HCA 58

HIGH COURT OF AUSTRALIA

Mason C.J., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.

PRECISION DATA HOLDINGS LTD. v. WILLS

(1992) 173 CLR 167

19 December 1991

Constitutional Law (Cth)

Constitutional Law (Cth)—Judicial power of Commonwealth—Corporations and Securities Panel—Acquisition of shares and conduct in relation to shares—Power to declare unacceptable—Power to make orders, after declaration, to protect rights or interests of persons affected by acquisition or conduct or to ensure that takeover proceeds as if acquisition or conduct had not occurred—Whether Panel invested with judicial power—The Constitution (63 and 64 Vict. c. 12), ss. 71, 72—Australian Securities Commission Act 1989 (Cth), s. 171—Corporations Law of Victoria, ss. 731, 732, 733, 734.

Decision

MASON C.J., BRENNAN, DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ. In an action in this Court, the plaintiffs sought a declaration that the Corporations and Securities Panel ("the Panel"), established by s.171 of the Australian Securities Commission Act 1989 (Cth) ("the ASC Act"), could not validly exercise the functions and powers referred to in ss.733 and 734 of the Corporations Law of Victoria. The plaintiffs contended that, in exercising those functions and powers, the Panel would be exercising the judicial power of the Commonwealth contrary to ss.71 and 72 of the Constitution, notwithstanding that the powers and functions are conferred by a State statute. The plaintiffs also sought an injunction restraining the members of the Panel (the first three defendants) from hearing any matter referred to them by the Australian Securities Commission ("the Commission") concerning the acquisition of shares in Titan Hills Australia Ltd. ("Titan Hills") and Precision Data Holdings Ltd. ("PDH") and conduct relating to those acquisitions. In addition to the three Panel members, the Commonwealth, the Commission and the State of Victoria are defendants in the action.

2. On 23 August 1991 Dawson J. reserved the following question for the consideration of a Full Court:

"By reason of the plaintiff's contentions in paragraphs 12 and 13, is the Corporations and Securities Panel precluded from validly exercising the functions and powers referred to in sections 733 and 734 of the Corporations Law of Victoria?"

Argument on the question reserved was heard on 25 and 26 September. At the conclusion of the argument, the Court reserved its decision. Subsequently, having regard to the urgency of the matter, on 24 October the Court announced that it had reached a clear and unanimous conclusion that the question should be answered in the negative, answered the question accordingly and ordered the plaintiffs to pay the defendants' costs of the question reserved. The Court stated it would publish its reasons at a later date.

3. According to the statement of facts agreed by the parties, a general meeting of the shareholders in Titan Hills voted on 7 May 1991 to approve a "takeover scheme", involving an offer for the acquisition by Titan Hills of 100 per cent of PDH, including the 51 per cent of PDH held by Dabby Pty. Ltd. ("Dabby"). The acquisition was to be paid for by the issue of two Titan Hills shares for each PDH share. Dabby accepted the offer and received 12,821,004 shares in Titan Hills.

4. On 4 July 1991 the Commission applied to the Panel for a declaration under s.733(3) of the Corporations Law of Victoria that certain acquisitions and conduct were unacceptable and for certain other orders under s.734 and, if necessary, under s.735(2). The acquisitions in question were:
(1) the acquisition by Chinzoni Pty. Limited ("Chinzoni") of

1,900,000 shares in Titan Hills on 3 May 1991 as a result of the conversion by Chinzoni of convertible notes in Titan Hills;

(2) the acquisition by Titan Hills of shares in PDH pursuant to the

takeover scheme previously described;

(3) the acquisition by Dabby of 12,821,004 shares in Titan Hills on

9 May 1991 upon acceptance by Dabby of the takeover offer.

The conduct in respect of which declarations were sought was: (1) conduct engaged in by certain named persons in relation to each

of the three acquisitions mentioned above;

(2) conduct engaged in by certain named persons in relation to the

affairs of PDH since 8 May 1991; and

(3) conduct engaged in by certain named persons in relation to the

affairs of Titan Hills since 7 May 1991.

5. The first three defendants constituted the Panel for the purpose of the application made to the Panel by the Commission on 4 July 1991. They are part-time members of the Panel, having been appointed in accordance with s.172(2) and (3) of the ASC Act.

6. Paragraph 12 of the agreed facts records the plaintiffs' contention that, in exercising the functions and powers referred to in ss.733 and 734 of the Corporations Law of Victoria, the Panel is exercising the judicial power of the Commonwealth. Paragraph 13 records the plaintiffs' further contention that, to the extent to which the functions and powers referred to in ss.733 and 734 involve the judicial power of the State of Victoria, such functions and powers may not validly be conferred upon or accepted by the Panel because its members are not persons by whom the judicial power of the Commonwealth may be exercised in accordance with s.71 of the Constitution.
The legislative provisions

7. The Commission is established as a body corporate by ss.7 and 8 of the ASC Act. The objects of the ASC Act include the following:

"(a) to establish an Australian Securities Commission to administer such laws of the Capital Territory, the States and the other Territories as confer functions and powers under those laws on the Commission; and

(b) to provide for the functions, powers and business of the Commission; and ... (d) to establish a Corporations and Securities Panel ..." s. 1(1).

The Commission has such functions and powers as are conferred upon it by or under the Corporations Act 1989 (Cth), the Corporations Law of the Capital Territory or the ASC Act itself s. 11(1).

8. Part 3 of the ASC Act deals with investigations and information- gathering by the Commission. Section 13 deals with the Commission's powers of investigation. Section 13(2) provides that where the Commission -

"has reason to suspect that unacceptable circumstances within the meaning of Part 6.9 of the Corporations Law of this jurisdiction have, or may have, occurred, the Commission may make such investigation as it thinks expedient:

(a) for the purposes of determining whether or not to make an application under subsection 733(1) or 734(2) of that Law; or

(b) otherwise for the due administration of a national scheme law".

The expression "national scheme law" is defined by s.5(1) of the ASC Act to mean:

"(a) the following:

(i) the Corporations Act 1989; (ii) the Corporations Law of the Capital Territory; (iii) this Act; or (b) a law of another jurisdiction that corresponds to an Act or Law referred to in paragraph (a)".

The reference to "another jurisdiction" appears to be a reference to a jurisdiction other than the Australian Capital Territory. The expression "national scheme law of this jurisdiction" is defined by the same sub-section to mean:

"an Act or Law referred to in paragraph (a) of the definition of 'national scheme law' in this subsection".

9. The Panel is to consist of not fewer than five members, s. 172(1), appointed by the Governor-General on the nomination of the Minister, s. 172(2). A member may be appointed as a full-time or part-time member, s. 172(3). The Minister is to nominate a person as a member only if the Minister is satisfied that the person is qualified for appointment by virtue of his or her knowledge of, or experience in, one or more of the following fields, namely, business, the administration of companies, the financial markets, law, economics and accounting, s. 172(4). The Governor-General shall appoint as President of the Panel a person who is, or is to be, a member, s, 173.

10. Subject to the ASC Act, a person appointed as a member holds office for such term of at most five years as is specified in the instrument of appointment but is eligible for re-appointment, s. 175(1). A person shall not be appointed as a full-time member for a term extending beyond the day on which he or she will attain the age of sixty-five, s. 175(3). It is conceded that these provisions for the appointment of Panel members are inconsistent with the provisions of s.72 of the Constitution governing the terms of appointment of Justices of federal courts created by the Parliament.

11. Section 174 of the ASC Act, as presently enacted, provides:

"(1) The Panel has the functions and powers conferred on it by or under a national scheme law of this or any other jurisdiction. (2) The Panel has power to do acts in the Capital Territory in the performance or exercise of any function or power expressed to be conferred on the Panel by a national scheme law of another jurisdiction."

12. The Panel shall, for the purposes of the performance or exercise of its functions or powers in relation to a particular matter, be constituted by three members in respect of whom a direction by the President is in force in relation to that matter, s. 184(1) and (2). The Panel is authorized to hold hearings for the purposes of the performance or exercise of any of its functions and powers, s. 188(1). Where a national scheme law requires the Panel to give a person the opportunity to appear at a hearing, the Panel may direct that the hearing or part of the hearing take place in public or in private, s. 188(4). A member may, by summons, require a person to appear at a hearing to give evidence, to produce documents or to do both, s. 192(1), and may administer an oath or affirmation, s. 192(2)(b).

13. A hearing shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of national scheme laws and a proper consideration of the matters before the Panel permit, s. 193(1). The Panel is not bound by the rules of evidence, s. 193(2)(a), but it is required to observe the rules of natural justice, s. 193(3). At a hearing two members form a quorum, s. 193(4). The Panel is to take into account evidence given or a submission made to it at a hearing or a written submission lodged by a person who does not wish to appear, s. 195. The Panel may, of its own motion or at a person's request, s.196(1), refer to the Court (the Federal Court or a Supreme Court of a State or Territory), s. 5(2); s. 9 of the Corporations Law, a question of law arising at a hearing. A member has, in the performance or exercise of any of his or her functions and powers as a member in relation to a hearing, the same protection and immunity as a Justice of the High Court, s. 197(1). The Panel has no power to punish for contempt or for non-compliance with its orders. Contravention of a direction given by the Panel under s.190(1) preventing or restricting the publication of certain material is an offence punishable on summary conviction, s. 200(3). The Court may order a person to comply with a requirement made under s.192, s. 201(3).

14. The national scheme law which applies in the present case is the Corporations Law of Victoria, Corporations (Victoria) Act 1990 (Vict.), s. 7; but cf., as to the mode of citation, ss. 3(1), 11(1) and 13(1), each State having enacted the Corporations Law in identical terms mutatis mutandis. Section 7 of the Corporations (Victoria) Act provides:

"The Corporations Law set out in section 82 of the

Corporations Act as in force for the time being - (a) applies as a law of Victoria; and (b) as so applying, may be referred to as the Corporations Law of Victoria."

The reference to "the Corporations Act" is a reference to the Corporations Act 1989 (Cth) Corpo9rations (Victoria) Act, s. 3(1). Section 82 of that Act sets out the entire text of the Corporations Law and it is that law that has been enacted by each of the States.

15. Before we refer to the text of the Corporations Law, we should mention s.58(1) of the Corporations (Victoria) Act which applies as a law of Victoria the ASC Act, other than certain excluded provisions. The excluded provisions, which are listed in s.58(2) and include Div.1 of Pt 10 containing ss.171 to 183 of the ASC Act, operate because they have force as Commonwealth law.

16. For present purposes, the critical provisions of the Corporations Law of Victoria are ss.733 and 734. They provide, so far as they are material:

"733. (1) Where it appears to the Commission that unacceptable circumstances have, or may have, occurred: (a) in relation to an acquisition of shares in a company; or

(b) as a result of conduct engaged in by a person in relation to shares in, or the affairs of, a company;

the Commission may apply to the Corporations and Securities Panel for a declaration under subsection (3) in relation to the acquisition or conduct. ... (3) Where, on an application under subsection (1), the Panel is satisfied: (a) that unacceptable circumstances have occurred: (i) in relation to an acquisition of shares in the company; or

(ii) as a result of conduct engaged in by a person in relation to shares in, or the affairs of, the company; and

(b) having regard to the matters referred to in section 731 and any other matters the Panel considers relevant, that it is in the public interest to do so;

the Panel may by writing declare the acquisition to have been an unacceptable acquisition, or the conduct to have been unacceptable conduct, as the case may be. (4) The Panel may only make a declaration under subsection (3) before the end of whichever of the following ends last: (a) the period of 90 days after the day on which the acquisition took place, or the conduct was engaged in, as the case may be;

(b) the period of 30 days after the day on which the application was made;

(c) such other period as the Court orders on an application made by the Panel within the period referred to in paragraph (b).

(5) The Panel may only make a declaration under subsection (3) if it has given each person to whom the declaration relates an opportunity to appear at a hearing before the Panel and to make submissions and give evidence to the Panel in relation to the matter. (6) Where the Panel makes a declaration under subsection (3), the Panel shall, as soon as practicable: (a) give to each person to whom the declaration relates a copy of:

(i) the instrument by which the declaration was made; and

(ii) a written statement of the Panel's reasons for deciding to make the declaration; and

(b) cause to be published in the Gazette a copy of the instrument by which the declaration was made.

734. (1) This section applies where, under subsection 733(3), the Corporations and Securities Panel: (a) declares an acquisition of shares in a company to have been an unacceptable acquisition; or

(b) declares conduct engaged in by a person in relation to shares in, or the affairs of, a company to have been unacceptable conduct.

(2) On the application of the Commission, the Panel may, whether or not it has previously made an order under this section in reliance on the declaration, make in writing one or more of the following orders: (a) any order that it thinks necessary or desirable to protect the rights or interests of any person affected by the acquisition or conduct or to ensure, as far as possible, that a takeover scheme or takeover announcement, or a proposed takeover scheme or proposed takeover announcement, in relation to shares in the company proceeds in the manner in which it would have proceeded if that acquisition had not taken place or that conduct had not been engaged in;

(b) without limiting the generality of paragraph (a): (i) an order directing a person to supply specified information to the holders of shares in the company;

(ii) an order prohibiting the exercise of voting or other rights attached to specified shares;

(iii) an order directing a company not to make payment, or to defer making payment, of any amount or amounts due from the company in respect of specified shares;

(iv) an order prohibiting the acquisition or disposal of, or of an interest in, specified shares;

(v) an order directing the disposal of, or of an interest in, specified shares;

(vi) an order directing a company not to register a transfer or transmission of specified shares, being a transfer or transmission occurring after the commencement of this section;

(vii) an order that an exercise of the voting or other rights attached to specified shares be disregarded;

(viii) an order directing a company not to issue shares to a person who holds shares in the company, being shares that were proposed to be issued to the person because the person holds shares in the company or pursuant to an offer or invitation made or issued to the person because the person holds shares in the company;

(ix) an order cancelling, or declaring to be voidable, an agreement or offer that was made after the commencement of this section and that relates to a takeover scheme or takeover announcement, or to a proposed takeover scheme or proposed takeover announcement, or is otherwise connected with the acquisition of shares;

(x) an order directing a person who is registered as the holder of shares in respect of which an order under this section is in force to give written notice of that order to any person whom the holder knows to be entitled to exercise a right to vote attached to those shares;

(c) for the purpose of securing compliance with any order made under paragraph (a) or (b), an order directing a person to do, or to refrain from doing, a specified act.

(3) The Panel may, by written order, vary or revoke, or suspend the operation of, an order made under subsection (2). ... (5) A person shall not contravene an order in force under subsection (2). ... (7) The Panel shall not make an order under this section if it is satisfied that the order would unfairly prejudice any person. (8) Where the Panel makes an order, or varies an order that is in force, under subsection (2), the Panel shall give to each person to whom the order is directed a copy of a written statement of the Panel's reasons for the decision to make or vary the order."

17. The two sections must be read with s.732 which deals with the expression "unacceptable circumstances". That section provides:

"For the purposes of this Part, unacceptable circumstances shall be taken to have occurred if, and only if:

(a) the shareholders and directors of a company did not know the identity of a person who proposed to acquire a substantial interest in the company; or

(b) the shareholders and directors of a company did not have a reasonable time in which to consider a proposal under which a person would acquire a substantial interest in the company; or

(c) the shareholders and directors of a company were not supplied with enough information for them to assess the merits of a proposal under which a person would acquire a substantial interest in the company; or

(d) the shareholders of a company did not all have reasonable and equal opportunities to participate in any benefits, or to become entitled to participate in any benefits, accruing, whether directly or indirectly and whether immediately or in the future, to any shareholder or to any associate of a shareholder, in connection with the acquisition, or proposed acquisition, by any person of a substantial interest in the company."

18. It is evident that s.733(3)(a), in requiring the Panel to be satisfied of the occurrence of unacceptable circumstances before declaring the acquisition or conduct in question to have been unacceptable, requires the Panel to make findings of fact. Additionally, s.733(3)(b) requires the Panel to have regard to the matters set out in s.731. That section provides:

"In exercising any of its powers under section 728 or 730, the Commission shall take account of the desirability of ensuring that the acquisition of shares in companies takes place in an efficient, competitive and informed market and, without limiting the generality of the foregoing, shall have regard to the need to ensure ..."

The paragraphs which follow are, respectively, the converse of paragraphs (a), (b), (c) and (d) of s.732. The reference in s.733(3)(b) to "the matters referred to in section 731" is plainly a reference to the matters referred to in the opening words of s.731 as well as to the matters mentioned in the paragraphs which follow. The matters dealt with in the opening words of s.731 all impinge upon the public interest, a concept which is of central importance in s.733(3)(b).

19. Where a person contravenes an order made by the Panel under s.734, the Court may, on an application by the Commission, make such orders as it considers necessary for the purpose of securing compliance with the Panel's order, including but not limited to: (a) a remedial order; and (b) an order directing a person to do, or refrain from doing, a specified act, s. 736.
Does the Panel exercise judicial power?

20. It is convenient to consider the plaintiffs' submission that ss.733 and 734 vest the exercise of judicial power in the Panel. Only in the event that this submission is accepted will it be necessary to consider the plaintiffs' second submission, namely, that the Panel, though it is not a federal court constituted as Ch.III of the Constitution prescribes, is exercising the judicial power "of the Commonwealth". It was submitted that the Panel is empowered to hear and determine a dispute between parties, on the application of the ASC, by making a declaration as to past conduct, involving the making of findings of fact, and by making orders affecting the existing rights of parties. Thus, once the Panel declares under s.733(3) an acquisition of shares to have been an unacceptable acquisition, or conduct engaged in by a person in relation to shares in, or the affairs of, a company to have been unacceptable conduct, the Panel is authorized to make orders affecting such rights. By way of example, the Panel may make an order prohibiting the exercise of voting rights or the acquisition or disposal of specified shares, or an interest in those shares, or an order that the exercise of the voting or other rights attached to specified shares be disregarded. In this setting, so the argument runs, the making of a declaration and the consequential orders amount to an authoritative and binding determination which is characteristic of the exercise of judicial power.

21. True it is that the making of binding declarations of right by way of adjudication of disputes about rights and obligations arising from the operation of the law upon past events or conduct is a classical instance of the exercise of judicial power(28) Re Cram; Ex parte Newcastle Wallsend Coal Co. Pty Ltd (1987) 163 CLR 140, at pp 148-149. But the declarations for which s.733 provides are not binding declarations of right in the sense in which that term is used, more particularly in the context of the exercise of judicial power. That is because the adjudication which the Panel under s.733 is called upon to make is not an adjudication of a dispute about rights and obligations arising solely from the operation of the law on past events or conduct.

22. The acknowledged difficulty, if not impossibility, of framing a definition of judicial power that is at once exclusive and exhaustive arises from the circumstance that many positive features which are essential to the exercise of the power are not by themselves conclusive of it. Thus, although the finding of facts and the making of value judgments, even the formation of an opinion as to the legal rights and obligations of parties, are common ingredients in the exercise of judicial power, they may also be elements in the exercise of administrative and legislative power. Re Ranger Uranium Mines Pty Ltd Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656, at pp 665-667; Re Cram, ibid., at p 149. Again, functions which are ordinary ingredients in the exercise of administrative or legislative power can, in some circumstances, be elements in the exercise of what is truly judicial power.

23. It follows that functions may be classified as either judicial or administrative according to the way in which they are to be exercised Reg. v. Hegarty; Ex parte City of Salisbury (1981) 147 CLR 617, at p 628; Re Ranger Uranium Mines (1987) 163 CLR, at p 665. So, if the ultimate decision may be determined not merely by the application of legal principles to ascertained facts but by considerations of policy also, then the determination does not proceed from an exercise of judicial power. Reg. v. Davison (1954) 90 CLR 353, per Dixon C.J. and McTiernan J. at pp 366-367, citing the comments of Lord Simonds LC. in Labour Relations Board of Saskatchewan v. John East Iron Works Ltd. (1949) AC 134, at p 149. That is not to suggest that considerations of policy do not play a role, sometimes a decisive role, in the shaping of legal principles.

24. Furthermore, if the object of the adjudication is not to resolve a dispute about the existing rights and obligations of the parties by determining what those rights and obligations are but to determine what legal rights and obligations should be created, then the function stands outside the realm of judicial power. In Re Ranger Uranium Mines (1987) 163 CLR at p 666 the Court said:

"The power of inquiry and determination is a power which properly takes its legal character from the purpose for which it is undertaken. Thus inquiry into and determination of matters in issue is a judicial function if its object is the ascertainment of legal rights and obligations. But if its object is to ascertain what rights and obligations should exist, it is properly characterized as an arbitral function when performed by a body charged with the resolution of disputes by arbitration."

The Court was then speaking with reference to an arbitral function of the Conciliation and Arbitration Commission but, as the judgment shows, ibid., at pp 665-666; see also Re Cram (1987) 163 CLR at p 149, the remarks apply with equal force to determinations made for administrative, executive or legislative purposes.

25. When the function to be performed by the Panel under s.733 is examined in the light of the principles stated above, it becomes apparent that the decision to be made by the Panel is not an adjudication of a dispute about existing rights and obligations. The Commission alone can institute proceedings before the Panel and invoke an exercise of its authority. In applying for a declaration under s.733, the Commission is not seeking the vindication of any right or obligation; a declaration, when made, does not resolve an actual or potential controversy as to existing rights. Nor does the Panel, in granting or refusing a declaration, make its decision solely by reference to the application of the law to past events or conduct. Although the function entrusted to the Panel is that of making a declaration about past events or conduct, the function is one in which the Panel is bound to take account of the considerations of commercial policy mentioned in s.731. "(T)he desirability of ensuring that the acquisition of shares in companies takes place in an efficient, competitive and informed market", and "any other matters the Panel considers relevant" in arriving at the conclusion that it is in the public interest to make a declaration, as well as to apply the provisions of ss.732 and 733 to the facts which it finds. Furthermore, the object of the inquiry undertaken by the Panel and of the declaration which it makes under s.733 is to enable the Panel to make one or more of the orders set out in s.734. In other words, the object of the Panel's inquiry and determination is to create a new set of rights and obligations, that is, rights and obligations arising from such orders as the Panel may make in a particular case, being rights and obligations which did not exist antecedently and independently of the making of the orders. It follows from what has already been said that, in creating that new set of rights and obligations, considerations of policy, including commercial policy, as well as factors not specified by the legislature yet deemed relevant by the Panel, on which it may form a subjective judgment, must inevitably play a prominent part. The materiality of these considerations is reflected in the prescription in s.172 of the ASC Act of the qualifications for appointment as a Panel member, namely, that he or she have knowledge or experience in one or more of the fields of business, the administration of companies, the financial markets, law, economics and accounting. There is no necessity that any member has a legal qualification.

26. In some situations, the fact that the object of the determination is to bring into existence by that determination a new set of rights and obligations is not an answer to the claim that the function is one which entails the exercise of judicial power. The Parliament can, if it chooses, legislate with respect to rights and obligations by vesting jurisdiction in courts to make orders creating those rights or imposing those liabilities. It is an expedient which is sometimes adopted when Parliament decides to confer upon a court or tribunal a discretionary authority to make orders which create rights or impose liabilities. This legislative technique and its consequences in terms of federal jurisdiction were discussed by Dixon J. in R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141, at p 165 et seq. Leaving aside problems that might arise because of the subject-matter involved or because of some prescribed procedure not in keeping with the judicial process, where a discretionary authority is conferred upon a court and the discretionary authority is to be exercised according to legal principle or by reference to an objective standard or test prescribed by the legislature and not by reference to policy considerations or other matters not specified by the legislature, it will be possible to conclude that the determination by the court gives effect to rights and obligations for which the statute provides and that the determination constitutes an exercise of judicial power. Reg. v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, per Kitto J. at p 377. However, where, as here, the function of making orders creating new rights and obligations is reposed in a tribunal which is not a court and considerations of policy have an important part to play in the determination to be made by the tribunal, there is no acceptable foundation for the contention that the tribunal, in this case the Panel, is entrusted with the exercise of judicial power.

27. The fact that the Panel is given a power to make orders conditionally upon its having declared the acquisition to have been an unacceptable acquisition or the conduct to have been unacceptable conduct does not indicate that the Panel is exercising judicial power in making the declaration or subsequently in making orders. As the making of a declaration necessarily proceeds in part, at least, from an assessment of considerations of commercial policy, not solely from an application of the law to the facts as found, neither the making of a declaration nor the making of orders is binding in the same sense that a judicial determination would be binding. Both are subject to judicial review. The consequence is that, for much the same reasons as the Trade Practices Tribunal was held not to exercise judicial power in discharging its functions under ss.49, 50 and 52 of the Trade Practices Act 1965 (Cth), ibid., especially per Kitto J. at pp 373-378, the Panel does not exercise judicial power in making or refusing a declaration under s.733 or in making or refusing orders under s.734.

28. The plaintiffs sought to extract some support for their case from Mikasa (N.S.W.) Pty. Ltd. v. Festival Stores (1972) 127 CLR 617, where this Court held that s.90AA of the Trade Practices Act 1965 (Cth) vested judicial power in the Commonwealth Industrial Court, although the jurisdiction conferred by that section to grant an injunction was not conditioned by what a court of equity would, in ordinary cases, require before granting such relief. However, in that case, the legislation required the Commonwealth Industrial Court to make findings of fact in relation to events which occurred before the date of the application and to apply to the facts so found the provisions of the Act, in accordance with the construction which the Court put upon those provisions. As Walsh J. noted, ibid., at p 649:

"(I)t is by those processes that the Court determines whether or not a person, who is a party to proceedings before it, has acted in breach of the Act and has thereby rendered himself liable to have an injunction granted against him."

Conclusion

29. For the foregoing reasons, the plaintiffs' first contention that the functions and powers conferred upon the Panel by ss.733 and 734 of the Corporations Law of Victoria are judicial in nature must be rejected. The rejection of that contention means that it is unnecessary to consider the consequential arguments advanced by the plaintiffs. It is in accordance with this conclusion that the question reserved was answered in the negative, with the consequence that the plaintiffs were ordered to pay the defendants' costs of the question reserved.

Orders

Answer the question reserved as follows:
Question: By reason of the plaintiffs' contentions in

paragraphs 12 and 13, is the Corporations and Securities Panel precluded from validly exercising the functions and powers referred to in sections 733 and 734 of the Corporations Law of Victoria?

Answer: No.

The plaintiffs to pay the defendants' costs of the question reserved.