Johns and Waygood Ltd v. Utah Australia Limited VR 70
(Judgment by: Sholl J)
Between: Johns and Waygood Ltd
And: Utah Australia Limited
Contempt of court
Royal Commission appointed by Executive
Terms of inquiry similar to issues in civil action pending in Supreme Court
Validity of Commission
Power of court to restrain Royal Commission
No real or substantial interference with course of justice
Judgment date: 28 September 1962
This is a motion served on the defendants and on three Royal Commissioners appointed to inquire into the failure of the structure of the King Street Bridge on 10 July 1962, whereby the plaintiff in the action seeks an injunction restraining the Commissioners from proceeding with the inquiry for which they have been appointed, on the ground that if they do so they will be in contempt of this Court by reason of the pendency of the action in which the motion is taken out. The motion asks in the alternative for the attachment of the Commissioners, but that remedy has not been pressed.
By the King Street Bridge Act 1957 (No. 6156) authority was given to the Country Roads Board to construct the bridge on behalf of the Government of Victoria. The successful tenderer for the contract was Utah Australia Ltd., and, by sub-contract with Utah, the plaintiff fabricated much of the steel work used in the bridge. The bridge was gazetted as completed on 18 October 1961, whereupon responsibility for its maintenance passed to the Melbourne and Metropolitan Board of Works.
On 3 January 1962 the plaintiff issued the writ in the present action claiming just under 405,000 pounds against each of the defendants, Utah Australia Ltd. and the Country Roads Board, for work and labour done, or alternatively, as damages for breach of contract.
On 2 April 1962 the plaintiff delivered a statement of claim, and on 8 May 1962 the defendant Utah Australia Ltd. delivered a defence which simply put in issue substantially all the material allegations of the plaintiff. But on 31 May 1962 the learned Chief Justice on the application of the defendant, the Country Roads Board, struck out the whole of the statement of claim, but gave leave to re-plead within 21 days, that is to say, by 21 June 1962.
No pleading was in fact delivered by that date. On 10 July 1962 a section of the bridge collapsed through failure of the steel work. On 28 August, when, incidentally, there was still no statement of claim on the record, the Executive Government of the State appointed his Honour Judge Barber, Dr. Matheson and Professor Greenwood, Royal Commissioners, "to inquire into, and report upon the cause or causes of the failure of the bridge". The Commissioners' terms of reference were stated also to include, without derogating from the generality of the foregoing expression, the following seven specific subject-matters:--
- The terms, conditions, specifications and drawings in accordance with which tenders for design and construction of the bridge were invited by the Country Roads Board, and whether the same were adequate and reasonable for the purpose.
- The tenders received, the action taken to investigate the same, the circumstances surrounding the acceptance of the tender submitted by Utah Australia Ltd., and whether the acceptance thereof was reasonable and proper and justified in the circumstances.
- The design submitted and adopted for the bridge, and whether the same was adequate and suitable or was in any and what respects defective or inappropriate or deficient.
- The materials and processes and workmanship used in the construction and erection of the bridge, the standard and suitability thereof for the purposes for which they were used, whether they were in accordance with the contract specifications, and whether they were in any and what respects defective or inadequate.
- The nature, extent and standard of supervision exercised over the construction and erection of the bridge, and whether the same was reasonable and adequate or was in any and what respects inadequate or defective.
- Whether any and what negligent, culpable or improper act or omission directly or indirectly caused or contributed to the failure of the bridge, and if so the party or parties responsible therefor.
- Whether the construction and erection of the bridge in accordance with the tender submitted by Utah Australia Ltd. was reasonable having regard to the known state of engineering and scientific knowledge and experience subsisting at the time the tender was accepted.
On 31 August a new statement of claim was delivered; and on 11 September notice of the present motion was filed. On 20 September, during the hearing of argument on the motion, further particulars of the statement of claim were delivered.
The plaintiff's claim against Utah Ltd., according to the amended statement of claim, is put upon several alternative bases. By paragraph 4 the sum of 415,012 pounds (as amended by the further particulars) is claimed for what are, in effect, extras, --that is to say, work done over and above that originally contracted for, at the request of the Utah Company, and work originally contracted for, done to a higher standard at the request of the same company. By paragraph 5 the same claim is made as upon an agreement, or agreements, varying the original contract, and by paragraph 6 as upon a series of agreements for the substitution of new work for the original contract work. By paragraph 7 the same sum is claimed as damages for breach of a term said to be implied in the plaintiff's contract with the Utah Company, that the company would claim against the Country Roads Board the amount due for the plaintiff's extra work and/or would indemnify the plaintiff against extra costs incurred by it in doing such work.
By paragraph 8, claim is made against both the Utah Company and the Board for 515,012 pounds (the amended figure given in the further particulars), upon a basis which is not very clearly expressed. So far as the Utah Company is concerned it is alleged that in breach of a term (presumably an implied term) in its contract with the plaintiff, the Utah Company failed to prevent the Country Roads Board from interfering unreasonably with the performance by the plaintiff of its contract obligations. So far as the Country Roads Board is concerned the same sum is claimed against it, but whether upon the basis that its alleged unreasonable interference was a tort or in some other way actionable by the plaintiff, does not appear. A summons issued by the Country Roads Board to strike out paragraph 8 is at present pending.
By paragraph 9 the same sum of 415,012 pounds is claimed against the Board only, as for extras done at its direct request to the plaintiff.
I agree with Mr. Menhennitt (for the plaintiff) that so far as one can judge upon the amended statement of claim (paragraph 8 of which may well still have to be amended), and without the benefit of seeing any defence yet delivered, the plaintiff is very likely at the trial of the action to be under the necessity of calling evidence to prove the agreement or agreements made--the work it did--that the work or some of it was of a higher standard than originally contracted for--that the additional work and the higher standard work were alike done at the request of the defendants or one of them--and that the work was done in accordance with the appropriate standard.
Royal Commissions for present purposes may be regarded as being of two different kinds--those the duties and functions of which are laid down by statute, and those which are appointed at common law by virtue of the Crown's right to do so. Examples of Royal Commissions specifically set up by statute are the Victorian Royal Commission into Communism, conducted by Lowe, J, in 1949 and 1950, and the Commonwealth Royal Commission into Espionage, conducted by Owen, Ligertwood and Philp, JJ, in 1954. As to such Commissions it is conceded by Mr. Menhennitt, and I think rightly, that if Parliament by a specific statute sets up an authority and authorizes and requires it to report upon a given subject-matter, no question can arise as to attacking the validity of the appointment or limiting the powers of the Commission by reason of any apprehended or actual interference by the Commission with the course of any criminal or civil proceeding in the ordinary courts. Indeed, this was expressly decided by Fullagar, J, in Lockwood v Commonwealth (1954) 90 CLR 177;  ALR 625.
Commissions appointed at common law are frequently spoken of as being appointed by virtue of the Crown's prerogative, as, for example, by Dixon, J (as he then was), in McGuinness v Attorney-General of Victoria (1940) 63 CLR 73, at pp. 93-4;  ALR 110, though Griffith, CJ, pointed out in Clough v Leahy (1904) 2 CLR 139, at p. 156, that that is not an accurate legal description if intended to refer the appointment to powers peculiar to the Crown.
The Commission with which I am presently concerned was appointed, I am told, by His Excellency the Governor-in-Council, by virtue of the authority conferred by CL8 of the Letters Patent of 29 October 1900, laying down the powers of the Governor. It is established that the Crown has at common law the right to appoint a Commission of mere inquiry, though it is merely the exercise of the same power to inquire as any subject has: Clough v Leahy (2 CLR 139) at p. 156. Such a Commission may be appointed to inquire into the question whether a crime has been committed by a specific individual (McGuinness v Attorney-General of Victoria, supra) so long as no attempt is made to constitute the inquiry a new kind of court with the judicial power to punish: see the same case. The proceedings of a Royal Commission of mere inquiry are not judicial proceedings at all--per Dean, J, in R v Arrowsmith,  VLR 78, at p. 85;  ALR 264. But a common law Commission attracts to itself in Victoria (as is also the case elsewhere in Australia) the compulsive statutory powers conferred by the Evidence Act 1958, s17, s18, s19, s20, for example, to summon and swear witnesses and to require the production of documents. Such statutory powers do not invalidate the Commission by investing it with the character of a supposed new court: McGuinness's Case.
But it is authoritatively laid down by two decisions of the High Court, which bind me, that there is a limitation upon the Crown's power at common law to appoint such a Royal Commission, namely, it cannot issue a Commission the effect of the operation of which will be to interfere with the course of justice in the ordinary courts. I think the limitation goes further than merely to prevent the appointment of a Commission the express purpose of which is so to interfere. In Clough v Leahy (1904) 2 CLR 139, at p. 161, Griffith, CJ, said:
"There is one objection which probably would be a good one if it could be sustained. Any interference with the course of the administration of justice is a contempt of Court, and is unlawful. If, therefore, any person, purporting to act under the authority of a Royal Commission, were to do an act amounting to an interference with the course of justice, he could not claim any protection on the plea that he was acting for the Crown."
Lower on the same page he added:
"I do not think it is any part of our duty to suggest a case in which Government might issue a Commission having for its obvious purpose interference with the course of justice. It is inconceivable; but, if it did occur, it would be sufficient to say that the Crown had been wrongly advised and had no power to do it."
In McGuinness's Case (63 CLR 73) at pp. 84-5; ( ALR 110) at p. 112, Latham, CJ, said:
"The case would be very different if the Commission were acting as a court, or if its proceedings interfered with the course of justice."
His Honour then went on to quote the passage which I have just cited from Clough v Leahy, and proceeded:
"If for example, a prosecution for an offence were taking place, the establishment of a Royal Commission to inquire into the same matter would almost certainly be held to be an interference with the course of justice and consequently to constitute a contempt of court. There are other circumstances in which such an inquiry might prejudice proceedings in the civil or the criminal courts. It is neither necessary nor desirable to attempt to enumerate in an exhaustive manner the circumstances which might raise a case of contempt of court. But it is important, I think, that there should be no doubt with respect to two propositions--
- the Executive Government cannot by the exercise of the prerogative create new courts; and
- the Executive Government cannot by any exercise of the prerogative interfere with the due course of the administration of justice."
Dixon, J (as he then was), said (63 CLR 73) at pp. 100-101; ( ALR 110) at p. 118, referring to Clough v Leahy:
"In New South Wales the Supreme Court decided that a commission of inquiry was unlawful, on the ground that its purpose was to inquire into a subject- matter over which a court, the Industrial Arbitration Court, had jurisdiction and which it had determined, and to usurp part of that court's function.... The decision was reversed in this Court on the ground that the Commission did not affect any rights declared by the Arbitration Court to exist, and in no way impeached the proceedings of that court, and did not interfere with the course of its justice. It was conceded in the judgment that the Crown would exceed its powers if ever a commission issued having for its purposes some interference with the course of justice; but, incidentally, the rhetorical question was asked, Why is an inquiry into the question of guilt or innocence of an individual, a mere voluntary inquiry, contrary to law?"
It would tend to defeat the obvious purpose and common sense of the exception if it were limited to cases of deliberate interference by the Crown with the course of justice which, as Griffith, CJ, remarked in Clough v Leahy, would be an inconceivable case.
In my opinion, there is a corresponding limitation upon the powers of a validly appointed common law Commission, both upon its common law powers to inquire and to report, and upon the statutory powers with which the Evidence Act invests it. Dixon, J, in McGuinness' Case, (63 CLR 73) at pp. 98-9; ( ALR 110) at p. 117, observed:
"What, if any, coercive powers the Crown might give by a special commission of inquiry under the prerogative remained a matter of doubt up to the last century. But gradually it has come to be understood that no power of compelling testimony can be so conferred, notwithstanding that a clause purporting to enable the commissioners to call witnesses before them is commonly inserted in a commission of inquiry. Alpheus Todd in his Parliamentary Government in England (1869), p. 352, stated in unqualified terms that unless expressly empowered by Act of Parliament, no commission can compel the production of documents or the giving of evidence, or can administer an oath. But a commission granted at common law is not invalidated as a whole by an attempt to confer such powers, as Lord Lyndhurst seems to have conceded in expressing his objections to the Municipal Corporation Commission of 1835; cf. Law Review, vol. 15, p. 294. Before the Tribunals of Inquiry (Evidence) Act 1921 (11 Geo. V, c. 7) such powers were given in England only by special statutes, but in Australia, in every State, general legislation had long existed arming commissions of inquiry with the power of compelling testimony. For the purpose of considering the validity of a commission this fact must be left out of account. At common law it may be beyond the prerogative power of the Crown to set up commissioners with the same authority as a court to compel the attendance of persons to testify and to submit to its directions, when the purpose is to determine whether or not offences against the law have been committed. But a commission valid at common law cannot be invalidated because under statute powers of compulsion arise when the commission is issued."
This passage indicates that attempted interference with the course of justice may result in the restriction of the operation of an initial (and valid) appointment within narrower limits than the instrument of appointment purports to set.
I reject the argument advanced by the learned Solicitor-General, on behalf of the present Commissioners, that once a valid common law appointment is made there is no limitation upon the statutory powers of such a Commission, and no way in which their exercise can be curtailed or controlled by reference to the law of contempt of court. For, after all, they are only powers, and it cannot possibly be right to hold, for example, that a Royal Commission appointed to inquire into subject- matter A can, by the mere use of its statutory powers under the Evidence Act, lawfully proceed to summon and examine witnesses with respect to an unrelated subject-matter B. It is, of course, not easy to imagine a case of a validly appointed Royal Commission interfering with the course of justice in the course of exercising its statutory powers. For it could not detain against his will a witness required in a court; it can only report to a law officer disobedience by a witness of its orders. But I consider that to refuse to release under subpoena duces tecum documents required at a court hearing could amount to contempt. And it may be that to publish to the general public, as distinct from the Executive which appointed it, such a Commission's finding on a matter specifically sub judice at the time, would be another example.
How far, then, does the above-quoted observation of Latham, CJ, in McGuinness' Case, (63 CLR 73) at p. 85, take us? If a common law Royal Commission is appointed to inquire into and report upon the very same question as is the subject of an already existing criminal prosecution, and nothing else, presumably the appointment is wholly invalid; the Crown has been wrongly advised, and the whole purpose of the appointment is to interfere with the course of justice within the meaning (as I interpret it) of the observation of Dixon, J, in McGuinness' Case, at p. 101, which I have already cited. Upon that view, any act of the Commission--even of sitting and inquiring--would be unauthorized, though the Commission's acts would only become unlawful if calculated to interfere with the course of justice, as, for example, the exercise of compulsory powers in invitum against a witness, or the publication of the Commission's report on the alleged offence. Presumably the same position would obtain if a common law Royal Commission was appointed solely to inquire into and report upon the very same issue as was the subject of an already existing civil action.
But other considerations arise where a civil action--even one already pending at the date of the appointment of the Royal Commission-- raises different issues from those which the Commissioners are appointed to report upon. In such a case, the actual appointment of the Commissioners may well be valid (as was, for the purpose of the argument, conceded to be the case here) and the operation of the doctrine may be limited to the circumscribing of the ambit of the Commissioners' powers where interference is established or is probable or, on the other hand, there may be such uncertainty as to any likelihood of interference that the Commissioners' powers should be held still to be untrammelled.
It is desirable that another question should be squarely faced, that is to say, what the position is if the Royal Commission is appointed before the relevant litigation begins? Obviously the appointment, when made, cannot be invalid by the operation of any doctrine relating to interference with the course of justice. But suppose a prosecution is thereafter begun, or a writ issued, raising issues identical with those which the Royal Commission is considering?
In my judgment, there is no logical ground on which it can be denied that in such circumstances there is a circumscription, and it may be a complete suspension, of the Commission's powers, if on the facts the Commission's activities will create a genuine case of interference with the course of justice in the prosecution or in the action. The powers of the Royal Commission may contract, even to nothing, for the time being and expand again when the legal proceeding, or any possibility of prejudice to it, is ended. But, of course, it is essential that the legal proceeding should be bona fide--as, for example, a criminal proceeding by the Crown presumably would be. If the proceeding is not bona fide, or if the court is not satisfied that it is, obviously there will be no intervention by the court in the proceedings of the Royal Commission. That is what Fullagar, J, was primarily concerned to point out when, in Lockwood v Commonwealth (1954) 90 CLR 177;  ALR 625, he went on to express, obiter, certain views as to what the position would have been under a common law Commission, and observed, (90 CLR 177) at p. 186; ( ALR 625) at p. 630:
"It would indeed savour of absurdity if an inquiry duly authorized by law could always be stultified by the simple expedient of issuing a writ out of a superior Court."
In the present case, the writ was issued long before the Royal Commission, and the result is that questions both of validity and of limitation of powers arise.
In my opinion, the appointment of the Commission was valid, and Mr. Menhennitt was right in so conceding. There is no sufficient correspondence between the terms of reference of the Commission, and the issues which seem, on the present material, likely to arise in the action, to make the appointment invalid. Obviously, of course, there was no deliberate purpose of interfering with the course of justice, though that is not necessary. I have, indeed, no doubt at all that the Executive had a genuine and important public purpose in mind in appointing the Commission with a view to consulting the safety and convenience of the travelling public, and investigating the possibility of undue laxity or corruption in connexion with the expenditure of large public funds employed in the construction of the bridge.
With regard to the question of the limitation of the Commission's powers, I am of opinion that the Royal Commission is not entitled to interfere with the proper conduct or trial of the civil action, as, for example, by so publishing its report on any common issues arising in the action and before it, as to be calculated to affect the result of the action, or by preventing documents required at the hearing of the action, or for its preparation, being made available when required.
But I do not consider that this is a case where it has been proved that any interference in the necessary sense is yet calculated to occur. Still less do I think a case has been made for intervention at this point by way of summary remedy on motion, either by injunction or attachment. In Davis v Baillie,  VLR 486, at pp. 493-4;  ALR 8, at pp. 9-10, after referring to a number of cases, Fullagar, J, said:
"All these cases, and some others at which I have looked, have to be read with care and in the light of all the particular circumstances. Sometimes the decision really turns on the view of the court that the matter complained of has no real and substantial tendency to unfairness or prejudice. In some civil cases I think that the court has been far from satisfied that the pending proceedings, in connexion with which the charge was made, had been commenced in good faith by the person complaining. In others again the court has, I think, taken the view that the tendency to prejudice is there, but that it is only slight, and that not merely ought it not to punish but it ought not to hold guilty of contempt a person who was innocent of any wrongful intent and innocent of gross negligence. The truth is, I think, that the jurisdiction is essentially discretionary, and that because it is discretionary there is often felt to be no real necessity for considering, as separate and distinct questions, the question of guilt and the question of punishment. The proceeding is criminal in character: Re Thompson (1893) 19 VLR 286; R v Fletcher; Ex parte Kisch (1935) 52 CLR 248;  ALR 134; but the logical distinction between 'conviction' and 'sentence' has not the significance which it has in an ordinary criminal proceeding. I was much impressed by Mr. Nimmo's proposition that I had to deal with two questions:
- Was there a contempt? and
- Was there a punishable contempt?
Of course, if there is a clear contempt, the Court must consider whether it should punish, and, if it should punish, how it should punish. But often, I think, the court does not ask itself two separate questions, but simply, and quite properly, asks itself whether it ought to exercise its jurisdiction. And, as in all cases of discretion, the matters which should be taken into consideration cannot be exhaustively enumerated and defined a priori."
Further on in the judgment ( VLR 486) at p. 494; ( ALR 8), at p. 10, his Honour added:
"It is also consistent with the view which I have expressed that the jurisdiction to punish for contempt in this class of case is, as has often been said, exercised with the greatest caution, and that the Court must be clearly satisfied that the matter published is 'calculated to prejudice'."
In R v Pacini,  VLR 544, at pp. 546-7;  ALR 636, at p. 637, Lowe, J, summarized the law with which I am here concerned, though with especial reference to newspaper and radio publications, in six propositions, which I cite as follows, without reading the authorities which his Honour quoted:--
- All publications (whether written or oral) which tend to pervert the course of justice or to prejudice the prosecution or defence in a pending trial constitute contempt of Court.
- Punishment of such contempt by summary procedure is discretionary.
- Intention to interfere with the course of justice or to prejudice the prosecution or defence in a pending trial is not necessary to constitute the contempt.
- The presence of such an intention may aggravate the contempt, and the absence of such an intention is a factor to be considered in determining whether the Court's discretion should be exercised, and it is also a factor to be considered in determining whether any and if so what punishment should be imposed on the person in contempt.
- The Court will not exercise its summary jurisdiction unless the contempt is real and substantial.
- The tendency of the publication must be judged as at the time of publication and is not determined by the fact that for some reason no harm has resulted from the publication."
In Bell v Stewart (1920) 28 CLR 419, at p. 432, Isaacs and Rich, JJ, stated, among other propositions, the following two propositions, which I regard as relevant here:--
- A publication referring to pending litigation is a technical contempt if it is one having a tendency to influence the result--this gives the Court jurisdiction to interfere;
- the Court will not exercise its summary power of interference at the instance of a party unless, besides the tendency, the publication is likely to influence the result."
As I said, those authorities deal, primarily, with the question of press or analogous publications, but the law which they state is capable of general application to a problem of this kind.
Mr. Menhennitt argued that there were five ways in which it already appeared by evidence that the Royal Commission hearing, if it proceeds at all, is calculated to interfere with the course of justice in respect of the plaintiff's pursuit of its remedy by action, namely,
- by its effect on the judge, jury and witnesses concerned in the action;
- by the probable admission and publication before the Royal Commission of inadmissible evidence;
- by preventing the adequate preparation of the plaintiff's case for the trial of the action, and by rendering it impossible for the trial to proceed concurrently with the Royal Commission hearing;
- by depriving the plaintiff of the opportunity of having its own witnesses' evidence take the defendants by surprise and;
- by depriving the plaintiff's counsel of the element of surprise in their cross-examination of the defendants' witnesses.
In discussing these contentions, I begin by pointing out again that no defences have been delivered to the amended statement of claim, and that, therefore, it does not yet appear that any plea based on defective workmanship on the part of the plaintiff is to be raised in the action. Unless and until it is raised, it does not even appear that the failure of the bridge--which is the whole subject-matter of the Royal Commission's inquiry and to which all the other terms of reference are subject-- will be relevant at all to the issues in the action. It is conceded on all sides that the plaintiff will have to prove--as earlier pointed out-- the work done, the agreement or agreements made, including the defendant's request for such work, the higher standard required, and the performance of the work to the appropriate standard. And it is conceded too that there is likely to be some overlapping of the evidence at the two hearings. But this is not enough.
I shall take each of Mr. Menhennitt's five topics and briefly discuss them.
With regard to the effect of the Royal Commission on the judge, jury and witnesses concerned in the action, I begin by leaving the jury out of account. In my opinion, no judge should allow this action to be tried by a jury. A perusal of the further particulars of the plaintiff's claim, running to of foolscap, and stating reliance on several hundreds of documents, shows that the operation of O.XXXVI, r5, would be attracted; and a consideration of the amended statement of claim, together with counsel's explanation to me of the way in which the plaintiff puts its claim for the cost of fabricating the steel to higher standards than those originally specified, and a perusal of CA Masterton's address to the Melbourne Engineering Conference 1961, with reference to the technical and scientific welding problems encountered in the building of the bridge (which address is an exhibit before me) strongly reinforce the conclusions stated. It is true that neither defendant has yet moved to get rid of the jury, but the judge in any event can himself at the trial, and I have no doubt will, dispense with the jury if the parties have not taken the appropriate steps to do so: see Mayhead v Hydraulic Hoist Co,  2 KB 424; and Wilson v Burridge,  VLR 433;  ALR 996.
In any case, even if the jury remain, this is not like the various contempt cases in which one-sided publications, or one-sided public presentations or discussions of evidence, were held to be calculated to affect the tribunal: for example Tichborne v Mosstyn (1867) LR 7 Eq 55 (note); Plating Company v Farquharson (1881) 17 Ch D 49 and Re William Thomas Shipping Co Ltd,  2 CH 368. In the present case, it is to be presumed that the evidence will put all views with respect to any matter which might have a bearing on the plaintiff's action; at all events, there is nothing to suggest that it will not do so. It is true that the various media of publication may perhaps present it only partially to the public. But I think I ought to take a practical view on a matter like this, and I decline to regard seriously the possibility that the action might still be heard by a jury. And I would add that partial presentation of the evidence to the public will be the affair of the press or other media, and not of the Royal Commissioners.
So far as the trial judge is concerned, again there is no analogy to cases like R v Arrowsmith,  VLR 78;  ALR 264, where what was involved was an attack upon the judge's personal integrity, punished as a contempt, not because it was calculated to affect his judgment, but because it was calculated to lower the standing of the tribunal by bringing on it public suspicion or opprobrium. Here, all that is feared by the plaintiff, or said to be feared by it, is that the judge may be affected by reading in the press evidence taken before the Commission, or by reading the Commission's report if it is made public before the trial. So far as the evidence is concerned, I cannot imagine a judge being any more affected by it than by the evidence at a committal proceeding, or an inquest, or by the evidence in another action involving similar questions; and compare the words of Knox, CJ, Gavan Duffy and Starke, JJ, in Bell v Stewart (1920) 28 CLR 419, at p. 425, referring to an actual attack on the Arbitration Court:
"It is ridiculous to suppose that the arbitration law was, or could, in the hands of the President, be, in any way obstructed or interfered with by the published words."
So far as the report is concerned, the Commission will do no more than deliver its report, I presume, to the appropriate Minister, and the possibilities that the Minister may thereafter in some way make the report public, and that its publication may possibly affect the judge's mind at the trial (the latter possibility being, in my opinion, remote in the extreme), are not grounds for restraining the Commission from proceeding with the taking of evidence and the making of the report to the Executive; cf., on this matter, Inglis Clark, J, Australian Constitutional Law (1905), 2nd ed., at pp. 230-4, where the following passage appears:
"It is, of course, evident that no question of interference with the due administration of justice could be raised in regard to the investigations made by any Commission of Inquiry appointed by the Crown, except in the contingency of a case pending in one of the courts, and involving an investigation of one or more of the same matters embraced in the scope of the inquiry entrusted to the Commission; and it is only when interference with the ordinary course of justice is a contempt of court that the courts can exercise their summary jurisdiction to restrain or punish it. The disclosure of particular facts in the course of one judicial proceeding may lead to the defeat of the proper administration of justice in another proceeding; and in order to prevent, as far as possible, any such result, the publication in the press of the evidence taken in a series of trials has frequently been prohibited by the courts until all the trials have been concluded. But the attorneys and counsel engaged in the first trial are not guilty of any contempt because they make use of the knowledge so gained by them for the benefit of their clients in the subsequent trials, and they cannot be restrained from making such use of the knowledge gained by them in such circumstances, or be punished for so using it. In any circumstances contempt of court must include conduct coming within one of the following descriptions, viz.--
- direct interference with the proceedings of the court;
- interference with a judge or any officer of the court, or with a juror or witness or a party to a suit;
- disregard or disobedience of any order or summons or other process of the court;
- publication of any matter derogatory to the court or to any judge or officer of the court;
- publication of any matter calculated or intended to influence the mind of a judge or of any other officer of the court, or the mind of any juror or witness, in reference to any case pending in the court.
Therefore the Commissioners appointed to investigate the books of the Bank of Van Diemen's Land could not have been guilty of any contempt of court in making the inquiry committed to them, so long as they did not publish any information obtained by them in the course of their labours, or any opinion or observations upon such information. All the reported cases of contempt of court not coming within any of the descriptions of conduct that have been numbered (1), (2) and (3), place it beyond dispute that there cannot be any contempt of court outside of those three descriptions of conduct, unless there is a publication of something likely or intended to interfere with the regular course of justice. It would not be a contempt of court on the part of any person to make use of all lawful methods available to him for the purpose of obtaining a knowledge of the facts involved in any judicial question upon which the judgment of a court or the verdict of a jury were to be subsequently given, and to form his own opinion in the meantime on the question to be so decided, so long as he did not publish those facts or the opinion he had formed upon them to other persons. It is, therefore, very evident that, except upon the ground that the knowledge to be obtained by the Commissioners in making their investigation was to be published by them, it could not be pretended that there was any question of contempt of court involved in their proceedings upon which the court would have jurisdiction to interfere with them; and the report of the argument upon the application for an order to restrain the Commissioners from proceeding any further in the matter clearly indicates that the Chief Justice felt the difficulty in the way of the court assuming jurisdiction in regard to the application made to him, on behalf of the defendant Pearce, when he put forward the proposition that the Commissioners, in sending their report to the Governor, would be publishing it. He was also reported to have said that 'clerks would copy it, and that was publishing it'.
As the Commissioners could not be responsible for anything done with their report after it had left them, as the application then before the Chief Justice was confined to the Commissioners, it is to be presumed that when he spoke of clerks copying the report he meant clerks employed by the Commissioners to make a fair copy of their draft report for perusal by the Governor, and to transcribe the evidence to be attached to the report. But he declined to give a final opinion on the application made to him, and expressed a wish that the matter should be discussed by the Full Court, and it is difficult to believe that the Full Court would have come to the conclusion that either the employment of clerks by the Commissioners to copy their draft report and to transcribe the evidence to be attached to it, or the subsequent transmission of the report and the evidence to the Governor, would be such a publication of those documents as would give the court jurisdiction to regard it as a contempt upon the application then before him. One very serious consequence of a contrary decision by the Full Court would be that the work of every Royal Commission, thereafter appointed to make any inquiry by which particular persons might be so affected as to make them desirous of baffling it, could be delayed for an indefinite period, and ultimately made useless, by a series of collusive actions abandoned before trial. The 5th section of the Act of the Parliament of Tasmania, which regulates the taking of evidence by Commissioners, distinctly contemplates the examination of witnesses upon matters which may subsequently become subjects of investigation in either a civil or criminal proceeding in a court of law; and the whole purport of that Act, as well as the prerogative right of the Crown to appoint Commissions of Inquiry, might be practically frustrated in the manner indicated, if the transcription by clerks of the evidence taken by Commissioners, and the transmission of that evidence and the Commissioners' report to the Governor, could be held to be such a publication of them as might become a contempt of court. A consequence so serious might well make the Supreme Court pause before committing itself to a decision from which the only consistent inference to be drawn, as to the ultimate reason for it, would be that the court assumed that the Crown itself intended to obstruct the course of justice by the publication of the evidence taken by the Commissioners and their report upon it. But we know that the court will not make any assumption derogatory to the honour and dignity of the Crown; and the only other reason that could be given for restraining the Commissioners from proceeding with their investigation would be that they, or their secretary or clerks, intended or would be induced to improperly and disobediently publish the result of it. Here, again, the conclusive answer to such a supposition is that the court will not assume a wrongful intention or a culpable weakness on the part of any person."
As to the witnesses, I do not see how I can hold that the giving of evidence by other persons before the Commission is calculated to affect the plaintiff's witnesses adversely, or lead them not to tell the truth, the whole truth, and nothing but the truth. No ground has been suggested for supposing that anything said by others at the Commission hearing will be likely to make the plaintiff's witnesses reluctant to come forward or reluctant to say what they know. It was argued that the plaintiff's witnesses themselves would be so affected by cross-examination before the Commission, if called there, that their willingness to give evidence again would be lessened, or they might change their evidence. But why should they be unwilling (if in fact called at both hearings) to tell the truth twice? Should this Court act on the basis that cross-examination is calculated to lead to subsequent suppression of the truth? I, at any rate, decline to do so.
It may well be that the Royal Commission will admit, and perhaps act on, evidence which would be inadmissible before a court. But if, as I assume, the case is heard by a judge, what of that, even if the inadmissible evidence is published in the press, and, it may be, relied on by the Commission for the purposes of its report? I can see no probability of any interference with the course of justice resulting.
I do not at all agree that the adequate preparation of the plaintiff's case for trial in this action will be impossible to undertake while the Commission is proceeding. I do not doubt that the two hearings could not, as a matter of practical convenience, proceed concurrently; solicitors, counsel, parties, and witnesses will of necessity be preoccupied with the proceedings before the Commission if it goes on next week, and I can see that its proceedings may take a considerable time. But I do not accept the suggestion of counsel that it might go on for a year. If it did I should think it would effectively destroy any usefulness it is intended to have. Counsel referred to recent inquiries which have gone on for months. One may have one's own views about the undesirability of allowing counsel to take charge of the proceedings of such inquiries and protract things in that way, and it may well be that in this country we should be well advised to adopt the principle, used in some quarters in the United States, of imposing time limits for the presentation of evidence and addresses, and of requiring written submissions. The Arbitration Court in this country has at times acted similarly. At any rate I do not propose to assume that this Commission, comprehensive though its task may be, will take the three gentlemen concerned away from their public and important avocations for anything like the time suggested by counsel. The relevance of this is that, in my opinion, the Commission should be well through the taking of evidence before the action would, in any event, be likely to be ready for trial. Nine months after writ, the plaintiff has just reached the point where it has an amended statement of claim on the record, and that is still subject to a pleadings summons to strike out part of it, a summons which I should think likely to succeed at least in part. When the statement of claim is finally put into proper order, defences will still have to be delivered, and probably replies to those defences, and obviously this is a case where discovery will be important, and the inspection and copying of documents by each side will be lengthy. I do not see how that can be avoided. The very proceedings before the Commission should help the plaintiff's advisers in getting to know the relevant documents, and in identifying and copying them. I will not assume that the Commission will place any obstacles in the plaintiff's way in connexion with the inspection, or withdrawal, or copying of documents put in evidence before it.
There may be matters requiring interrogatories, and it is a case where inspection under Order L may be required. The preparation of briefs will take time, and it is obviously an instance where counsel will need the assistance of expert testimony and conferences with such experts. All this, incidentally, will in my view, be likely to be assisted, rather than hindered, by the Royal Commission's proceedings. But the point is that, on what I know and have seen of similar litigation over many years in this Court, I should be surprised if the action were in any event--and in the ordinary course of preparation, Royal Commission apart--ready for hearing before the middle of next year at the earliest.
I do not see any real case of interference with the course of justice under this head of Mr. Menhennitt's submissions. There is at most a possibility of some inconvenience, but in McGuinness' Case, Latham, CJ, (63 CLR 73), at p. 83; ( ALR 110), at p. 111, speaking of a similar topic, said:
"The Evidence Act confers the statutory authority, the absence of which would prevent the lawful exercise of the compulsory powers mentioned.
"But it is contended that, independently of the particular objections mentioned, the Crown has no power to appoint a commission to inquire whether or not any person has been guilty of a crime. It is argued that such a commission attempts to supersede the ordinary courts of justice, and to do so without affording to accused persons the rights or privileges and protective procedures which are an essential part of the administration of justice in our community. "In my opinion, this objection is conclusively answered by the decision given in Clough v Leahy (1904) 2 CLR 139; 11 ALR 32."
The loss of the element of surprise, in relation to the presentation of the plaintiff's case, and the cross-examination of the defendants' witnesses, is, I consider, to be similarly regarded. The view that this could amount to a real interference with the course of justice was taken by Owen, J, in the Full Court of New South Wales, in Ex parte Leahy (1904) 4 SR (NSW) 401, but it was negatived in the High Court; see per Griffith, CJ, (1904) 2 CLR 139, at p. 154, where he quoted Owen, J, 's words:
"It is clear, therefore, that a Royal Commission taking an inquiry of this nature away from the duly constituted Court deprives the party summoned of a very important safeguard to which he would be entitled in the Court. And further it would compel one of the parties to a dispute to disclose his case to the other side before action brought, and so provide the other side with a weapon of attack. I am, therefore, of opinion that the inquiry directed by this Royal Commission does in effect supersede the Industrial Arbitration Court, and relates to a matter which has already been inquired into in that Court and determined, and which may again come before it, and is, therefore, illegal."
Now this was one of the judgments which was overruled when the decision below was reversed. Compare, also, the observations of Starke, J, in McGuinness' Case (63 CLR 73), at p. 90; ( ALR 110), at p. 114:
"But, in my opinion, " his Honour said, "the Crown cannot now set up, by virtue of its prerogative, any new jurisdiction, whether it is a court, a tribunal, or a person, to inquire into, hear and determine any civil or criminal cause without the sanction of an Act of Parliament. Nor, in my opinion, can the Crown alter by virtue of its prerogative the established legal procedure, whether for the purpose of trying causes or matters or bringing persons to trial. All this results from the constitutional principle or rule of law referred to in the Bishop of Natal's Case (1865) 3 Moo PCCNS 115, at p. 152; 16 ER 43, at p. 57, and the development of responsible government. But commissions merely ad inquirendum are not open to the same constitutional objections. Their activities and reports may in a loose sense affect subjects detrimentally, but have no effect upon their legal rights and duties."
If an officer of one of the defendants managed to listen in to a conference between the plaintiff's counsel and witnesses, that would not be contempt of court. The doctrine relating to felonious torts may result in a hearing in the criminal jurisdiction before the hearing of a civil action involving the same witnesses. So too, summary prosecutions, inquests, committal proceedings, or actions in other courts or other States, may anticipate the hearing of a civil claim in this Court. Mr. Menhennitt answered that that was in such cases merely one part of the machinery of justice interfering with another, and unavoidable. But while there may be other obvious cases which would amount to contempt of court--for example, as I suggested in the course of argument, a public meeting convened by a newspaper, to debate the subject- matter of a pending case, with prospective witnesses making statements thereat and being reported in the newspaper--that is not this case, and the reason for intervening in such a case would not really be the loss by one or more of the parties of the element of surprise at the trial, but the pernicious tendency of the matter complained of to prejudice jurors or prospective witnesses, or to intimidate one or more of the parties by arousing public antipathy. I do not think those things can, with any real show of justification, be predicted of the continuance of this Royal Commission's proceedings.
It was further said by Mr. Menhennitt, by way of a sixth and additional ground of complaint, that the effect of the Royal Commission hearing and report is calculated to be the discouragement of the plaintiff from proceeding with its action. He is not, I gather, referring to financial discouragement by the costs of representation before the Commission, but to the probability that the plaintiff may be discouraged by the evidence, or the report, from pursuing its claim in the court. With all respect, I cannot take this contention seriously in the circumstances of this case. The plaintiff has a civil claim for 400,000 pounds or 500,000 pounds for what I may briefly, and without perhaps being exhaustive, refer to as "extras" to its original contract. If this is, as I assume for present purposes, a genuine claim by a large public company, it appears wildly improbable--not to say fantastic--that it should forego it because of something said by witnesses or counsel at the hearing before the Royal Commission, or by the Commission in its report. It is, I suppose, conceivable that something in the report may tend to cause the plaintiff to consider compromise, but that is the purest surmise; it is absolute guesswork, and may never happen. If anything in the Commission's report (assuming it to be made before the trial of the action, which may well not be the case) does reflect upon the plaintiff's cause of action, it will not be in any way binding on the plaintiff or anyone else, and so far as the Commission is concerned, it will go forward only to the Executive. If the plaintiff, learning of it and weighing it with the help of its advisers, thinks it should affect its view of the probable course of the action, it will not be in any way thereby constrained or forced in relation to its conduct of the action; it will still be free to exercise its own judgment on the question.
There is certainly nothing at present about the projected hearing which I consider I ought to interfere by injunction to restrain. It is noteworthy that only one of the three parties to the action has moved for such a restraining order; the first defendant apparently does not care one way or the other whether the Commission proceeds, for it has not appeared to put any view in the present proceedings; and the second defendant has actively advocated the continuance of the Commission hearing. I am not unaware of the fact that it may suit the defendants to see if they can find a defence, or further defences, to the action, in the course of the Commission hearing, but the fact remains that neither defendant thinks it is going to be hurt by that hearing, whether through prejudicing of the tribunal, or the publication of inadmissible evidence, or inconvenience in preparation for trial, or loss of the element of surprise, or by intimidation of the party itself, or in any other way.
It may be that as the Commission hearing proceeds, something will arise which may appear likely to have a directly prejudicial effect on the action. As to that I cannot say. But if it does, application may be made to the Commission to exclude it, or to prevent its publication-- as, for example, by taking evidence privately--and if necessary, application may again be made to this Court to hold that the Commission's powers do not extend in the circumstances to dealing with the matter in question. And of course nothing in this judgment is intended to preclude any party from taking proceedings for contempt against the press or other media of publication if an appropriate occasion should arise.
It may be that some of the subject-matter of the report itself will be such as ought not to be published before the hearing of the action, for example, in particular, criticisms of witnesses, which might deter them from willingly giving evidence again. Of course, the report, as I said, may not in fact be made before the hearing of the action. But if it is, the Commission, as I have already said, will doubtless only publish its report to the Executive through the Minister, and the question whether any interference with the course of justice is likely from wider publication of the report will then be one for the Executive, which will doubtless bear in mind the observations in this judgment, and probably also for the public press, radio, and television enterprises, which will still be subject to the ordinary law relating to contempt of court, and no doubt will take advice with regard to their position thereunder before undertaking any such publication. In that connexion, it may be useful to remind the Royal Commissioners that they themselves have the power at any time to sit in private, as was done by Lowe, J, at times during the Royal Commission on Communism in 1949-1950, and was done with the whole of the proceedings of the Gouzenko Royal Commission on Espionage in Canada. That is a matter for the Commissioners.
In my judgment, contempt proceedings are, in the present matter, quite premature, and without justification at this stage, and there is no reason why the Commission cannot go on with its inquiry now. There is no real and substantial present danger of interference with the course of justice.
I was referred to two prior instances in which it was said that Royal Commissioners had declined to proceed with an inquiry into matter forming the subject of pending legal proceedings.
The first instance was the action of Lowe, J, in the Royal Commission just mentioned, when he declined to allow the witness Sharpley to be cross-examined as to credit regarding his domestic affairs, which were then the subject of maintenance proceedings in a court of petty sessions. I was of counsel assisting Lowe, J, in that inquiry and I have spoken to him recently about the matter. His recollection, with which my own agrees, is that it was merely as a matter of limiting cross- examination as to credit, in the exercise of his discretion, that he indicated a view that it would not help him for counsel to go into matters of the kind in question, still being investigated in another court. The fact was that Sharpley was cross-examined as to credit at great length on very numerous other matters, and the ruling was one of convenience and discretion, not of principle.
The same, however, cannot be said of the ruling of Herring, CJ, Gavan Duffy and Martin, JJ, sitting as Royal Commissioners in 1952 to inquire into allegations of attempted bribery of members of Parliament. What happened in that case was that two plaintiffs issued writs for defamation against a newspaper--the plaintiff Hollway and the plaintiff Snow--both on 1 October 1952. The alleged libel was a newspaper report of a charge of attempted bribery made in Parliament against the two plaintiffs and others. On 6 October 1952, when the actions were pending, the Royal Commission was appointed to inquire into (in substance) the precise question whether the alleged attempted bribery had taken place, as can be seen by comparing the alleged libel, set out in the endorsement on the writ in Snow's action, with the terms of reference of the Royal Commission set out in the Government Gazette, 6 October 1952, No. 822. Although it was stated that one action was not proceeding, and in the other no pleadings had been delivered, and justification was, therefore, not raised at the material time, the Commissioners, on 27 October 1952, appear to have come to the conclusion that they would be inquiring into the very same subject-matter as the issues in the current action if they proceeded with their inquiry, and they therefore adjourned the Royal Commission sine die. It never in fact went on, so far as I know; nor, so far as I am aware, did the libel action. The Commissioners affirmed the principle that a Royal Commission cannot do anything amounting to an interference with the course of justice, or constituting contempt of court. Whether they were right or wrong in the view they took on the facts of that case, does not matter. I do not, I believe, sitting here as a judge, take any different view, if I may respectfully say so, from the view of the law which they took as Commissioners in that case. But I see no real analogy between the facts of that case and the facts of this.
In my judgment, the present motion should be dismissed with costs.