United States Tobacco Company v The Minister for Consumer Affairs

[1989] HCATrans 21

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl23 of 1988

B e t w e e n -

UNITED STATES TOBACCO COMPANY

Applicant

and

THE MINISTER FOR CONSUMER AFFAIRS

First Respondent

THE TRADE PRACTICES COMMISSION

Second Respondent

THE AUSTRALIAN FEDERATION OF CONSUMER

ORGANISATIONS INC

Third Respondent

Application for special leave to

United

appeal

MASON CJ
DEANE J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDA~ 17 FEBRUARY 1989, AT 9.58 AM

Copyright in the High Court of Australia

S1T2/l/PLC 1 17/2/89

MR R.V. GYLES, QC: If Your Honours please, I appear with

my learned friend, MR B. WALKER, for the

applicant. (instructed by Baker & McKenzie)

MR J.L.B. ALLSOP:  May it please the Court, I appear with

my learned friend, MR P.J.D. HAMILL, for the

first and second respondents. (instructed by

the Australian Government Solicitor)

MR J. BASTEN:  And I appear for the third respondent, if

the Court pleases. (instructed by Slater Gordon)

MASON CJ:	Mr Gyles.
MR GYLES:	Your Honours, it is our submission that the case,
as it presented itself to the trial judge or the judge at first instance, was clearly a matter of public importance and that the character of the
case is not changed because, in the event, the
Full Federal Court's decision went off on a narrower point.

As appears from page 7 of the book, His Honour

below had to consider the position of the body AFCO,

which is typical of many organizations in the

community at the moment which have objects which
give it a concern as to conduct by various members

of the community,its position in relation to joinder

to proceedings under the ADMINISTRATIVE DECISIONS

(JUDICIAL REVIEW) ACT. The considerations relevant

to AFCO are not relevantly different from the

considerations which will apply to many other bodies

corporate and unincorporated in the community.	As
will be seen from page 7, there were three bases

there set forth for joinder of AFCO and His Honour

dealt with each of those. His Honour then, at

page 21 of the book, came to consider section 12

of the ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT.

He then, at page 23 of the book, came to consider

the principles involved in intervention and then

at page 27 of the book came to consider a suggestion

that had fallen from His Honour that there might be

room for special orders in relation to amicus curiae,

and at the end of the day His Honour rejected all

of the bases for joinder but made orders as to

amicus which are set out at pages 38 and 39 of the

book. There were, in addition to that some subsequent

orders which gave to the amicus the right, for example,
to participate in the-discovery process.

Now, in my respectful submission, the thorough-

going analysis that His Honour made of the various
grounds illustrate the public importance of the
matter. There were no decisions of this Court which

governed the question although, of course, ONUS and

ALUSTRALIAN CONSERVATION FOUNDATION, ROBINSON and

SINCLAIR were all relevant to some or all of the questions.

SlT2/2/PLC	2	17/2/89
United

The procedure in the Full Court was rather

unusual.

TOOHEY J: Just before you move to the Full Court, Mr Gyles,

what disadvantages would the Federation be under

having been given leave to appear as amicus

rather than be joinders of the respondent?

MR GYLES:	It was a little difficult to tell, Your Honour,
because the final position in relation to their situation remained a matter for the trial judge.
The formal orders I have drawn attention to at
pages 38 and 39 but there were also directions which
I will find in a moment as to what they could do and
they included participation, as I have said, in the
discovery process.  The disadvantages would have
been, Your Honour, presumably - sorry, that is
page 96 of the book, the directions which were given.
The disadvantages would presumably be the fact
that they would be subject to the discretion of the
trial judge at every point.

TOOHEY J: Throughout the proceedings.

MR GYLES:	At every point, and the question of their rights as an appellant would also be an open one I would
imagine.  So, there are distinctions between the
two positions although, as the Court will see from pages 38, 39 and 96, they receive rights going well
beyond the traditional right of an amicus.
His Honour arrived at that position by virtue of
his examination of the American authorities.

Now, in the Full Court the proceedings were

rather unusual. We applied for leave to appeal from

the amicus order and there was no cross-application

and, indeed, AFCO had, at that stage, taken a decision

that they would not appeal. In the course of

argument on the leave application it would not be,

I think, putting it too highly to say that the court invited AFCO to cross-appeal or cross-apply

for leave to raise the question of joinder.

MASON CJ: That was on the leave application, not on the hearing

of the - - -?

MR GYLES: That was on the leave application, although the

understanding was that the argument would range over

all the matters relevant. Of course, Your Honours,

I do not want to make too much of that because if

leave had been granted there would have been an

opportunity to cross-appeal but none the less the

suggestion came from the court. AFCO changed their

stance and decided to pick up the offered raft.

MASON CJ: What does that lead to, that the court ought to be

ordered to pay some part of the price?

SlT2/3/PLC	17/2/89
United
MR GYLES:	No, it is a slight -

MASON CJ: I just do not see how you manage to make use of it.

MR GYLES:	Your Honour, it is relevant to the cost point we
have but I am endeavouring to put that whilst in the end the Full Court's decision is rather a
narrow one,  they were dealing with a very wide
issue. In the event, as Your Honours will see from
the book, the appeal was allowed, the amicus order
was set aside but joinder was ordered. So, we won
the appeal but lost the cross-appeal.

DEANE J: And the war.

MR GYLES:	And the war, yes. Well, that battle, perhaps,
Your Honour.
Now, Your Honours, the narrower basis upon which the Full Court came to their decision, in our
respectful submission, is plainly wrong and I might
take a few minutes if I can to make that submission
good with arguing it in full.  May I go on, Your Honours,
to say this: if we are correct in that submission
then the issues which were available before the trial judge, the judge at first instance, and were to be
argued before the Full Court would be open and the
whole question of the status of a body such as this
in relation to this type of litigation under this
Act is an appropriate subject, in my respectful
submission, for special leave. There is no decision
of this Court upon the matter. It will call for a re-examination, for example, of OGLE V STRICKLAND, the priest's case. It will call for this Court's
decision as to the test to be applied in relation to general standing.
MASON CJ:	But I just do not follow that at the moment.
After all, the Court has, in previous cases,
established what is the general principle. It is
a matter of determining how particular facts and circumstances should be resolved in the light of the general principle established by this Court's
past decisions and it may be said that there is a
particular difficulty in inviting this Court to deal
with what is a novel area in terms of the application of the general principle first up without that area being, as it were, consolidated by a number of decisions of the Full Court of the Federal Court.
MR GYLES:	Your Honour, may I deal with that in two ways?

MASON CJ: Yes.

MR GYLES:	The first point is that this Court has not sat on
section 12 or, indeed, section 5 matters under the
ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT. The
cases of this Court to which reference have been made

SlT2/4/PLC	4	17/2/89
United

have been under the general law. Secondly,

there have been a series of decisions of the

Full Federal Court on this point and they are

referred to in the judgments below. There has

been sufficient consideration of it to not put

this Court under any disadvantage in dealing

with the point and, indeed, this case is a very
convenient vehicle for examining the position
of a body such as AFCO in relation to this Act
which, with all respect, must be a matter of
general public importance provided this is an

appropropriate vehicle which throws up the point.

Now, Your Honours, if I can go back to the

particular ground of the Full Court's decision

and endeavour to isolate where, in our submission,

Their Honours went wrong. Now, the starting point,

Your Honours, is section 12 which is to be found

at page 53 of the book.	Your Honours, section 12(1)
reads:

A person interested in a decision, in

conduct that has been, is being, or is

proposed to be, engaged in for the purpose

of making a decision -

et cetera -

may apply to the Court to be made a

party to the application.

Thus, there is an application on foot brought by a

person aggrieved under section 5 and a person

aggrieved includes a person whose interests are

affected.

Thus, it is necessary to isolate, for the

purpose of applying section 12, the decision or

conduct leading to a decision which is challenged.

Now, there is a sunnnary of the issues in the case

at page 49 of the book. In order to understand

that, Your Honours would need to have some knowledge

of the statutory provisions which are set out at

pages 45 to 48 of the book. It is that part of the

TRADE PRACTICES ACT which deals with unsafe goods

and the substantive section or the primary section

which is in issue in this case is section 65C(5),

page 45, line 21:

Subject to section 65J, where it appears

to the Minister that goods of a particular

kind will or may cause injury to any

person, the Minister may, by notice in
writing published in the Gazette, declare

the goods to be unsafe goods.

SlT2/5/PLC	5	17/2/89
United

And then section 65J(l):

Subject to section 65L, where the Minister

proposed to publish a notice under

sub-section 65C(5) or (7) or 65F(l) in
relation to goods of a particular kind, the

Minister shall prepare -

(a) a draft of the notice proposed to be

published; and

(b) a summary of the reasons for the proposed

publication of the notice,

and shall, by notice in writing published

in the Gazette, invite any person -

that is the supplier -

who supplied or proposes to supply goods
of that kind to notify the Connnission,
within the period of 10 days ..... whether

the supplier wishes the Connnission to hold a

a conference in relation to the proposed

publication of the first-mentioned notice.

Your Honours, what is attacked by our proceedings

are the ministerial decisions involved in the
publication of the notice under 65J(l) which, in

turn, picks up of course the provisions of

section 65C(5) and our proceedings endeavour to

put that for a variety of reasons: constitutional, construction of the statute and conduct in relation

to the decision, that that decision was invalid,

bad and should be struck down.

If the notice were valid, if the decision were

valid, then the statutory procedure follows:

there is a conference; the Trade Practices Connnission

at the conference,. as appears from section 65J(5),

at the top of page 47 - the Trade Practices

Connnission who hold the conference may - is

provided that:

any other person whose presence at the

conference is considered by the to be present or to be represented -

that is (c). There is, in other words, no limitation

of any sort upon the discretion of the Connnission

to permit a party to be represented at the conference

and - - -

TOOHEY J: Is there any real doubt, if the matter had proceeded

that far, that AFCO would have been permitted to

appear at the conference?

SlT2/6/PLC	6	17/2/89
United

MR GYLES:	AFCO were admitted to the conference, Your Honour, and it follows from subsection (7) of that
provision that they were entitled to put their case at the conference.
DEANE J:	Mr Gyles, going back before 65C(5), is there any provision under which a person who complains of

the goods can request the Minister to convene a

conference?

MR GYLES:	No, Your Honour, there is not. There is no statutory
provision at all dealing with how the Minister is
activated.  I mean, he is activated -
DEANE J:	But there is nothing that precludes somebody seeking

a conference?

MR GYLES:	I am sorry; no, the only party who may seek a
conference, the only provision for a conference,
is the supplier. There is no room for a conference
other than the conference provided for by
section 65J(4).

DEANE J:  I think I have put it badly. Can a person who may

be affected request the Minister to publish a notice

in writing pursuant to section 65C(5)?

MR GYLES:	Your Honour, the Act is silent as to that. There is no statutory mechanism for activating the
Minister. It is simply - he may do it and
presumably, as a public officer, people can make
representations to him, no matter what their status
or standing, but there is no statutory procedure for
so doing.
DEANE J:	And if somebody made representations to him and he

said he had not power to consider the representations,

no doubt he would be susceptible to mandamus?

MR GYLES:	Depending upon the status of the person making the
application and depending upon, ultimately,
whether or not he had a public duty to consider
those submissions.  Now, I do not want to pin
myself one way or the other on that, Your Honour.
DEANE J:	No, but I was just testing it because if such a

person got the notice published and there was then

an attack on the notice, such a person should

obviously be a party to the proceedings.

MR GYLES:	Granted all the steps in Your Honour's reasoning
but where there is no statutory procedure laid down, where the Minister simply has a discretion as to
whether he will or will not do something, it is a very long step to say that somebody with no special
interest in the matter who applies to him to
exercise a statutory power has a right to mandamus.
We would not - - -
SlT2/7/PLC	17/2/89
United

DEANE J: What I was suggesting was that if the notice had been

issued at the behest of AFCO, AFCO would obviously

have sufficient interest to be made a party to

proceedings attacking the notice.

MR GYLES:  I would submit not, Your Honour. If there is no

statutory procedure - to have a mandamus, you have

got to have a public duty and the Minister does not

have a public duty to consider it.

DEANE J:	I follow that but is that the obvious point?
MR GYLES:	That is one point, Your Honour.
DEANE J:	But the point that is obviously wrong?

MR GYLES: Well, Your Honour, may I deal with it in two ways:

first of all, we would not agree, with respect,

with Your Honour's conclusion because there is no

public duty involved. However, in the present

case His Honour, the trial judge, examined that

proposition and said there was no evidence that

this was procured by AFCO. That was their argument,

that they had written a letter saying, "Please give

a notice" but the Minister's reasons for publishing

the notice which are proclaimed do not refer to

AFCO and His Honour said he could not draw that

conclusion. So that has been adumbrated in this

case and found against the other party.

In any event, the question Your Honour raises

would itself be a matter of public importance as to whether a minister, under no duty to consider

representations - whether a representation having

been acceded to, that would give rise to the

sort of interest that Your Honour has in mind.

In any event, Your Honours, the conference procedure

goes through; the Trade Practice Commission then

makes a recommendation to the Minister

and he may accept it or reject it.

Now, the narrow point which in the end decided

the case was that the Full Bench said because

AFCO was permitted to be represented at the

conference it thereby acquired a special interest

within the meaning of the authorities which permitted

it to join in an application which related to the

validity of the notices which had been served dealing

with the proposed ban. Now, that, Your Honours,

is, in our respectful submission, the fatal flaw in

the reasoning.

We conceded both before His Honour and before the Full Bench and do so here that if there was no question of the validity of the notices but in the

course of the conference something happened which

affected the statutory rights of AFCO as being a

SlT2/8/PLC	8	17/2/89
United

party represented, they would obviously have

standing to join in proceedings.	And, indeed,
that is what happened in this very case.	We sought

an adjournment of the conference. When that was

refused we applied to the Federal Court for an

injunction. AFCO were represented and there was

no opposition to that representation because it

directly affected the conduct of the conference.

But the substantive proceedings - and this

appears sufficiently, Your Honours, from the

summary at page 49, line 10 to page 50, line 15 -

the challenge is not to the conference, it is to

the validity of the notices.

Now, it is true that as a consequence of

invalidity of the notice, the conference would come

to an end but if the notices are invalid, if the

ministerial decision was invalid, the conference is

a nullity which has no power to do anything and

the ability to be at the conference will be of no

avait thus there is no substantive right involved
in being a party to a conference which is in question

in the present proceedings.

DEANE J:  What effect would that have on defamatory statements

made by a participant in what had seemed to be a

conference but was a nullity?

MR GYLES:	Your Honour, I have not, as it were, prepared a
position on that. It would certainly raise real
questions as to any protection that would be
otherwise granted.  We did - I cannot recall -
advance a number of arguments as to why there ought to be an adjournment once validity was in issue, and the flaw, with respect, probably arises from
a misunderstanding by Their Honours of SINCLAIR's
case because as appears from page 62/17 over to
63/10 or 12, it was the special advantage to be heard in the conference which was identified as the
special interest and SINCLAIR's case in this Court was referred to as authority for that proposition. May I just remind Your Honours about the effect of that case as I hand it up? It is SINCLAIR V
MARYBOROUGH MINING WARDEN, 132 CLR 473.
Now, Your Honours, this was a case in which, as appears from page 476 point 2, that there was a
provision under the Mining Regulations which entitled
an appellant to lodge an objection without any
particular qualification to do so and the appellant objected to the mining of the sand, both on his own behalf and on behalf of the Fraser Island Defence
Organisation.  Then at the top of page 478, in
the judgment of the Chief Justice:

The appellant, having been an

objector before the warden, had a right

to have the hearing of the application

S1T2/9/PLC	9	17/2/89
United

conducted, and the warden consider the
application and the objections and make
his recommendation, according to law. If

the application has rot been so heard and determined, he is a proper party to seek

a mandamus to compel the hearing to be

had according to law.

And that is the principle in SINCLAIR's case,

Your Honours, and it is the principle which we

have accepted at all times and, indeed, put into
practice.. If there were a question about the

conduct of the conference,AFCO were an appropriate

party. However, if in SINCLAIR's case there had

been an attack upon the validity of the application

which had been made which brought the objection

procedure into question, then what the Chief Justice

said at page 478 would have no application. And,

in our respectful submission, the Full Court have

misunderstood SINCLAIR's case and have misunderstood

the necessity under section 12 to identify the

decision which was attacked. The decision which was

attacked here is the ministerial decision, not the conference. The conference is merely an accessary to the validity of the notice.

TOOHEY J: It seems to me a bit curious, Mr Gyles, that the

position of AFCO in the conference being accepted,

its right to participate in that aspect of the inquiry,

that if an attack is made upon the foundation from

which the conference derives, that that organisation

cannot be heard in regard to that attack.

MR GYLES:	Yes, Your Honour, and the reason for that, if I may
say so, is that the discr:e,tion given to the Trade
Practices Commission under the Act - subsection (3) -
is unrestricted, unrestrained, by any notion of
having your interests affected. That appears from page 47 of the book, Your Honour, line 8. So that
it is quite conceivable that the Commission might,
for reasons which appear good to it, to permit a
person to be present. Indeed, I am reminded that
there were two individual medical practitioners who,
in the end, were permitted to be present> there
were rough-riders from Queensland who were permitted
to be present, and so on.  Now, it is a quite
unrestrained discretion as to who can be there
and that is not coextensive with the confines of
section 12 of the ADMINISTRATIVE DECISIONS (JUDICIAL
REVIEW) ACT.  It may be that in the individual case
the two will coincide and, of course, it is AFCO's
argument, Your Honours, which was put to His Honour
below and, indeed, to the Full Court, that they
qualified anyway. They claim that they do have
the relevant interest under section 12. But the short answer to Your Honour's point is that the
gateways are different. There is no limitation on
the gateway under (S)(c) but there is under
section 12 and the two are not necessarily
coincident.  We say in this case they are not. They
contend they are.

SlT2/10/PLC	10	17/2/89
United

So, that, Your Honours, is the way we put

the point upon which we lost below. We submit

that in any event the question of the standing

of a body such as AFCO in this type of litigation

is extremely important and it is right for this

Court to take this opportunity to deal with it.

I should say a word about costs, Your Honours.

I have outlined the course of the matter and we

respectfully submit that to order costs against

us in the whole circumstances of this case without

reasons was to create an injustice which only this

Court could remedy. If Your Honours please.

MASON CJ: Yes, thank you, Mr Gyles. The Court need not

trouble counsel for the respondents.

The question sought to be raised here is

one that relates to a matter of joinder of a

party in proceedings. We are not

persuaded that it raises a matter of general

principle. Indeed, it seems to us that it raises

a matter concerning the application of principles

established by decisions of this Court to the

peculiar facts and circumstances of this case.

The matter of costs does not raise a matter that

would normally engage the attention of this Court.

For those reasons, the application for

special leave to appeal is refused.

MR BASTEN:	With costs, if Your Honour pleases?
MASON CJ:	You cannot resist that, Mr Gyles?
MR GYLES:	No, Your Honour.
MASON CJ:	The application is refused with costs.

MR GYLES: If Your Honours please.

AT 10.28 AM THE MATTER WAS ADJOURNED SINE DIE

SlT2/ll/PLC	11	17/2/89
United