Melbourne Steamship Co Ltd v Moorehead
15 CLR 333BC 1200025
(Decision by: Isaacs J) Court:
Judges:
Griffith CJ
Barton J
Isaacs J
Judgment date: 21 October 1912
Decision by:
Isaacs J
In my opinion, this order to review should be discharged, with costs, on the ground that the Company was bound by law to answer every question fully, and that it had no legal justification for refusing. In Appleton v Moorehead , 8 CLR at p 385, 15 ALR at p 261, I said of the procedure under s 15B -- "It is a mere investigation with a view to inform the mind of the Executive whether the law has or has not been observed, and if not whether the nature of the contravention is such as to merit further action."
This quotation involving the disclosure of full particulars states the two material directions in which the discovery authorised by the section may assist the Executive -- (1) Whether any and what contravention of the anti-trust provisions of the Act has taken place; and (2) whether, assuming a contravention, a given person should be proceeded against for his share in it.
These two matters are separate, and it is important to observe that whenever the Executive is in doubt as to either, the section gives the means of informing its mind. If, however, the Executive is already so far satisfied as to both, that legal proceedings have been instituted, or, as the case may be, consented to by the Attorney-General against the given person in respect of a given contravention, then, as regards that person in relation to that offence, the object of the section is exhausted, and has no operation, because the limits of the power have been reached.
I apply the law so interpreted to the facts of this case. And in the first place I leave out of consideration the question of Mr Sharwood's conversation with Mr Fookes, in order to see how the matter stands independently. paras 41 to 45 inclusive of the Statement of Claim charged against certain persons other than the present appellant the alleged offences of an illegal contract, and an illegal combination based on the contract; and I can see no reason whatever to doubt the right of the Comptroller-General to inquire as to the Company also. Otherwise every time a new offender is believed to be discovered, all existing proceedings against persons said to be connected with his alleged offence must be discontinued, and then commenced de novo . Form, and not substance, would be worshipped, and the sacrifice would be heavy. para 46 alleged an offence, in which it was said the present appellant participated, but only other persons were charged, and not the appellant. It is obvious the Attorney-General is not bound to arraign every person who in some minor degree becomes implicated in the offence. s 14 was passed so that the law officer of the Crown should exercise some discretion. The facts, so far as known to him, may in a particular instance lead him to think the interests of justice do not demand the prosecution of a given participant in the contravention. It depends on the nature, extent and duration of that person's participation. But if, after the Attorney-General has instituted proceedings against those whom he considers real offenders, the Comptroller-General has subsequently good reason to believe the case may be more serious as against a party omitted, there is no reason, so far as I can see, to exclude the operation of the section, for the purpose of obtaining definite and reliable information as to that person. In that view para 46 presents no obstacle whatever to the Comptroller-General's questions. If it does, the Crown is placed in this situation -- it must in every case where a party is implicated include him from the first in the proceedings, lest he should prove to be more deeply involved than at first appears, or it must afterwards discontinue all the existing proceedings, then inquire under s 15B, and then re-institute the action, or else allow a possible offender against the law to escape through the secrecy of his own actions.
That Parliament ever contemplated this seems to me incredible. The Crown has, however, pressed the position further than I have indicated. Its full contention has been that the words of the section are unlimited and unqualified, and that so long as the Comptroller-General believes the offence has been committed he may act, whether the offence in relation to the given person is under prosecution or not. I disagree with that contention, not on the ground that it is an interference with judicial power, but on a wholly different ground. Indeed, I see no foundation for the suggestion that this particular statutory procedure is ever an exercise of judicial power, or that Parliament is incompetent to authorise its use, whether legal proceedings have been instituted or not. The institution of process cannot change the nature of the procedure under the section; that which it is to-day, it remains to-morrow. Discovery of facts may be attached also to judicial procedure, and so made part of it, but it is not an exclusive or even an inherent attribute of that procedure. The "Customs Act 1901" (ss 4, 38, 214 and 215) affords instances of executive power of this nature. The common law Courts did not possess the power to grant discovery in England until 1854. Some Courts do not possess it now. The jurisdiction was assumed in Chancery because of the inability of the common law and some other Courts to grant it. And it is important to observe that if the proceeding to obtain information be treated as necessarily judicial after the institution of the action in which the information might be utilised, and notwithstanding the person interrogated is no party to the action, it cannot consistently be regarded as otherwise than judicial where it is pursued with a view to ascertain any necessary circumstances in contemplation of an action, and equally with a view to use it in that action when instituted, and particularly if the action is contemplated against the person interrogated. This is apparent from the fact that in Chancery, a bill of discovery might be filed before the party commenced his action at law, and either to ascertain what form of action to bring, or the proper person to sue, and for other purposes -- see Bray on Discovery , pp 612, 613. So that the previous institution of an action is no test. If it were then, as judicial power applies equally to any class of litigation, an expectant defendant, acting on the principle affirmed in the Sugar Commission Case , might forestall the Government by suing for a declaration, and by thus converting the section into a judicial instrument, deprive the Crown of its real and probably its only means of ascertaining the truth, and vindicating the law. So I put aside the suggestion of judicial action.
The true ground is, that reading s 15B with the rest of the Act, I gather the limit of the power to be where the matter has reached the stage when the Crown has definitely arraigned before a court a particular person on a particular charge. As to him in relation to that charge, the language of the power is on the face of it then inapplicable. This is greatly aided by the fact that complaint in writing mentioned in the section would include a complaint by a person injured civilly by some alleged contravention, and desirous of suing for treble damages under s 11, but debarred from instituting proceedings by s 14 (2) until he receives the written consent of the Attorney-General. In that case the power would be clearly exhausted when the consent is given, but not till then; and by parity of reasoning, a similar result flows from the institution of a prosecution which must be by the Crown itself -- see s 14 (1). In that case the prosecution against the party mentioned for the contravention mentioned is the limit of the power.
But if the limit of the power be as stated, it is obvious the Crown's right cannot validly be rejected at an earlier period, and before that limit is reached. Neither by express words nor by necessary implication is the authority so explicitly given further restrained. I do not see how it is open to this court to insert limitations which Parliament has excluded; limitations which affect discretion only, and really open up an inquiry as to the motive of the Crown in putting in force an acknowledged power with which it has been entrusted for the public welfare. I do not think that what was so candidly said by the Crown Solicitor's representative is in any way material to the Comptroller-General's power. I see nothing in the Act indicating the intention of Parliament -- for that, to my mind, is the real question -- as personally I see no shred of reason to doubt its competency, to render the exercise of the statutory authority unlawful, merely because the information when obtained was to be utilised so as to comply with the defendant's demands for particulars. Quite consistently with that the appellant might, after discovery, be added with any necessary or desired amendments. True, the Crown might have discontinued all its proceedings up to date, and paid the costs, then put its questions to this Company, examined its documents, and then could have re-started the cumbersome litigation, re-incurred the huge expense on both sides, and it would then have been free from this objection. I cannot read into the Act any such necessity, but if the appellant's present contention be correct, the Crown would be forced to pursue this devious, burdensome, harassing, and wasteful course, or risk the loss of information necessary for the purposes of justice, and the protection of the public in respect of, perhaps, the prime necessaries of life.
Authorities are numerous that motive in such a case is immaterial, no matter what person is exercising a right. More particularly must this be so in the case of the Crown, entrusted with the means which Parliament has thought necessary to maintain the due observance of its legislation. I do not think it is competent to a court to inquire into the motives of the Executive in such a case unless the Statute so declares. That is for another department of Government. It is not difficult to see, if such an issue can be raised, to what lengths it may be carried. Nor can the difficulty be overcome by using the word "purpose," because it is really not purpose but "motive" which is challenged. The distinction between the two is clear. The purpose of an act is the effect it is intended to have when done, which in this case is simply to elicit information. That is a perfectly lawful purpose. What is alleged on the strength of the conversation between Mr Sharwood and Mr Fookes is merely the motive actuating the Crown in attaining the desired and lawful purpose. The authorities are familiar and clear, that where a legal right exists, motive is immaterial. In Re Wilbran , 5 Madd. 1, it was said -- "Courts of justice had no concern with the motives of parties who asserted a legal right." The Privy Council adopted this in King v Henderson , [1898] AC 720 . In Dr Grenville's Case , 12 Mod. 386, Holt, C.J, speaking of a man's justification for arresting another said -- "It is not what he declares, but the authority which he has is his justification." This was approved by Lawrence, J, in Crowther v Ramsbottom , 7 TR 654 , Lord Kenyon, C.J, in the same case said --
I never understood that a man was obliged to justify a distress for the cause which he happened to assign at the time it was made. If he can show that he had a legal justification for what he did that is sufficient.
Now, the Comptroller-General's belief at a time when such belief is contemplated by the Act is the only legal justification stated by the Legislature as necessary; and as that admittedly existed in the present case, it seems to me that is sufficient, and to require more is practically to legislate, not to interpret. I therefore see no reason for absolving the appellant Company from answering.
A subsidiary question is raised on behalf of the appellant as to whether s 15B applies to a corporation at all. The Act itself, s 3, says that unless the contrary intention appears, "person" includes "corporation." The "Acts Interpretation Act 1901," ss 22 and 23, makes a general enactment to the same effect. It therefore lies on a person in the position of the appellant to show the contrary intention -- see per Privy Council in Union Steamship Company of New Zealand v Melbourne Harbour Trust Commissioners , 9 AC at p 369. Learned Counsel for the Company endeavoured to show contrary intention by saying, first, that a company cannot naturally answer questions or produce documents, and that s 15C recognised this, and made special provision for individuals to perform such acts.
But, to begin with, s 15C makes no provision whatever as to answering questions; so that if the argument is good there is no power to make a corporation answer questions at all, either by itself or through the medium of an individual. Next s 15C is not confined to individuals but expressly recognises and enforces the duty of the corporation to produce its books, though there is added the power to compel specific individuals under a personal sanction to perform the required duty. The inclusion of individuals in s 15C was probably to meet possible difficulties that have on occasions arisen, as, for instance, in Crowther v Appleby , LR 9 CP 23 , where directors refused to allow their secretary to produce the Company's books to an arbitrator; the latest English example being Eccles and Co v Louisville and Nashville Railroad Co ., [1912] 1 KB 135 , where the court of Appeal were divided as to the duty of a clerk in the employ of a firm to produce before a commissioner under letters rogatory, certain documents belonging to and in the possession of his employers.
I see no indication of "contrary intention" so as to take a corporation out of s 15B, if, according to ordinary legal notions, it primarily falls within the terms of that section. An illustration of contrary intention is found in Hawke v Hulton , [1909] 2 KB 93 , where it was held that a corporation could not be convicted under the "Lotteries Act" as a rogue and vagabond. But a corporation can do many things which at first sight appear much more difficult to fasten on a corporate body than permitting the inspection of documents or their answering questions, which may be done in writing. Chuter v Freeth and Pocock Ltd , [1911] 2 KB 832 , is a very strong illustration, both for the actual point decided, and the principles stated by Lord Alverstone, C.J, at p 836.
The cases cited during the argument -- Ranger v The Great Western Railway Co ., 4 De G. & J 74; Dyke v Stephens , 30 Ch Div 189 ; Wilson v Church , 9 Ch Div 552 , establish the ordinary liability, and of course the recognised capacity of a corporation to answer and to produce documents. Naturally this has to be done by means of individuals competent to perform the necessary physical acts, call those individuals agents, or representatives, or what you please. But, as shown by the case of Welsbach Incandescent Gaslight Company v New Sunlight Incandescent Co ., (1900) 2 Ch 1 , and particularly by the judgment of Collins, LJ, the answer so given is the answer of the Company, and not of the individual who gives it. Indeed, as Rigby, LJ, points out (p 12), under the former practice, when an officer was joined as a defendant with the Company for the purpose of discovery, and when both he and the Company had to answer separately, his answer could not be read as evidence against his co-defendant, the corporation. Very recently the principle under discussion has been applied in America in Wilson v The United States , 221 US 361 ; Dreier v United States, 221 US 394 . In the first case the appellant, who was president of a corporation, refused to permit inspection by a grand jury of books of the corporation in his possession. A subpna had been issued directed to the corporation, only requiring it to produce the books. Service was made upon Wilson and others, he attended, and declined to produce, and was orally presented by the grand jury to the court for contempt, and the court committed him. One objection raised before the Supreme Court on appeal from a refusal to discharge him on habeas corpus , was, that the subpna, without mention of any individual or officer, simply directed a corporation which could not give oral testimony to produce books.
On the point now under consideration, the court said (p 374) --
Where the documents of a corporation are sought, the practice has been to subpna the officer who has them in his custody. But there would seem to be no reason why the subpna duces tecum should not be directed to the corporation itself. Corporate existence implies amenability to legal process. The corporation may be sued; it may be compelled by mandamus , and restrained by injunction directed to it. Possessing the privileges of a legal entity, and having records, books and papers, it is under a duty to produce them when they may properly be required in the administration of justice.
The personal responsibility of Wilson was affirmed, and the reasons found at p 377 of the report are not material in the present case, but are closely connected with the subject.
For these reasons, I think the Company contravened the law by refusing to comply with the Comptroller-General's requirements, and that the decision of the Police Magistrate should be upheld.