Melbourne Steamship Co Ltd v Moorehead

15 CLR 333
BC 1200025

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(Judgment by: Griffith CJ) Court:

Judges:
Griffith CJBarton J
Isaacs J

Judgment date: 21 October 1912

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Judgment by:
Griffith CJ

This is an appeal from a conviction by a Police Magistrate upon a charge of failing to answer certain questions put to the appellants by the Comptroller-General of Customs, and purporting to be asked under the provisions of s 15B of the "Australian Industries Preservation Act." Two objections are taken --

1.

That s 15B does not apply to questions asked for the purpose of obtaining information for use in proceedings already commenced against other persons, and does not empower the Comptroller-General to require answers to questions asked for such purpose. 2. That the section does not apply to questions asked of an incorporated company, and does not empower the Comptroller-General to require an incorporated company to answer questions.

The nature and object of the powers conferred by s 15B were the subject of full discussion in the case of Appleton v Moorehead , 8 CLR 330 , 15 ALR 241 . The cases in which they may be exercised are two (1) if the Comptroller-General believes that an offence has been committed, and (2) if a complaint in writing has been made to him that an offence has been committed. The questions are to be put to persons whom the Comptroller-General believes to be capable of giving information as to the "alleged" offence, ie , the offence which he believes to have been committed or of which complaint has been made to him. The object of the inquiry is to ascertain whether the belief or complaint is well founded. The only result that can follow from it is a prosecution, which must be instituted by the Attorney-General or some person authorised by him -- s 14.

In my opinion, when the Attorney-General has formally instituted a prosecution in this court in respect of an alleged offence, the power, as well as the purpose, of s 15B is exhausted so far as regards the persons whom the Attorney-General alleges to have committed the offence for which he prosecutes, whether they are made parties to the suit or not. From that time the matter becomes subject to the judicial power, or, to adapt a familiar phrase, transit in litem pendentem . The section cannot, therefore, as contended by Mr Starke, be used for the purpose of collecting evidence in a pending suit. It is true that the words "if the Comptroller believes" may be literally capable of including cases where he bases his belief on the fact that the Attorney-General has brought a suit, but they are so inapt to express that meaning that such a construction should be rejected.

The relevant facts of the present case are that on 4th June, 1910, an action was commenced at the suit of the Crown against several defendants, not including the appellants, for penalties under the Act. The subject-matter of Appleton's Case was certain questions which had been put to him for the purposes of that action before its commencement. By the Statement of Claim in the action, it was alleged (para 46) that the defendants were on 1st January, 1907, members of a combination between themselves and the appellants and others in relation to trade and commerce in coal among the States, with intent to restrain trade to the detriment of the public. That action was set down for trial on 17th February, 1911, and the hearing had before 16th March been fixed for 10th April.

The questions in respect of which the appellants have been convicted were put by the Comptroller-General on 16th March. The first of them inquired whether the appellants had, since October, 1906, been a party to or shared in the benefits of any agreement, arrangement or understanding between all or any of the persons and firms who were defendants to the action (other than those charged as accessories only), in relation to the sale, supply and carriage of coal to the States other than New South Wales. This question was clearly relevant to the allegation contained in para 46 of the Statement of Claim; and the Comptroller-General was, therefore, for the reasons which I have given, not entitled to ask it at that stage so far as it referred to that matter.

In answer to this, it is said by the respondent that the Statement of Claim also contained an allegation that the defendants (not mentioning the appellants and the others) had between 24th September, 1906, and 30th January, 1907, made a contract relating to the same subject-matter and with a like intent, and that the question might have been put with the object of discovering whether the appellants were parties to that contract, which, it is suggested, may have been quite different from and unconnected with the combination alleged in para 46, so that the Attorney-General might be able to take proceedings against the appellants in respect of it, either by a fresh suit or by adding them as defendants to the existing suit. The point is a purely technical point of pleading, and I cannot refrain from expressing my surprise that it should be taken on behalf of the Crown. It used to be regarded as axiomatic that the Crown never takes technical points, even in civil proceedings, and a fortiori not in criminal proceedings. I am sometimes inclined to think that in some parts -- not all -- of the Commonwealth, the old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects, which I learned a very long time ago to regard as elementary, is either not known or thought out of date. I should be glad to think that I am mistaken.

I am not sure that, even as a technical point of pleading, the point taken is a good one, but I am relieved from the necessity of deciding it. When the questions were put to the appellants, they, through their solicitors, intimated to the Crown Solicitor that they objected to answer them, giving as a reason for the objection that the representative of the Crown Solicitor had told them that the questions were put in connection with the action then pending, and for the purpose of obtaining information for the use of the Crown in the action. They said that they were advised by Counsel that the Comptroller-General, in putting the questions for that purpose, was exceeding his power, and that in accordance with that advice, the appellants would refuse to answer. In replying to this communication no suggestion was made that the questions were put for any other purpose, or were relevant to any other matter. The conversation with the Crown Solicitor's representative was admitted. An analogy -- incomplete, of course, as all analogies must be -- is afforded by the rules observed by Courts in granting a new trial for the erroneous rejection of evidence. If evidence tendered is objected to, and the only ground urged in support of it is invalid, and the evidence is consequently rejected, the party who tendered it cannot afterwards obtain a new trial on the ground that it was admissible on some other ground not stated. The principle of the rule is that the action of the court was right when taken. In the same way I think that the action of a person interrogated under s 15B in refusing to answer a question avowedly put for a purpose which is unauthorised is right when taken. The same result is arrived at by applying the rule that a person who does, or omits to do, an act under an honest and reasonable, though mistaken belief in the existence of any state of things, is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist. In the present case it is apparent that the appellants honestly believed on reasonable grounds that the respondent demanded the answers for the purposes of the pending action, which he was not entitled to do.

Further, when a public officer is entrusted with a power to be used for a particular purpose, and avowedly seeks to use it for another and unauthorised purpose, the persons against whom it is sought to be so used may object to its exercise. It is ordinarily difficult to establish such an excuse, but in this case the difficulty does not arise. Such an attempted use of a power is sometimes called an abuse of the power -- in civil cases it is called a fraud on the power. I use both terms in the technical, and not in any invidious, sense, because in this case the unqualified nature of the power was honestly believed to exist. But that makes no difference in the result. Moreover, I am disposed to think that when a question demanding a categorical answer is put under s 15B, being so framed as to include matters concerning which the questioner is not entitled, as well as matters concerning which he is entitled, to ask, the person to whom the question is put may refuse to answer it in that form, and that it is for the questioner, and not for the person questioned, to modify it so as to confine it within permitted limits. I am therefore of opinion that, under the circumstances, the appellants were justified in their refusal to answer.

As to the second point raised on the appeal I have felt a good deal of difficulty. The words of s 15B are -- "May by writing under his hand require any person whom he believes to be capable of giving any information to answer questions." The term "answer questions" is defined to mean that the person on whom the obligation of answering is cast shall answer to the best of his knowledge, information and belief. By the "Acts Interpretation Act," s 22, unless the contrary intention appears, the word "person," when used in a Statute, includes a body corporate. s 3 of the Act under consideration contains a similar provision. One cannot help thinking, & a priori , that the object of s 15B was, as pointed out in Appleton v Moorehead , 8 CLR 330 , 15 ALR 241 , to discover facts from the examination of individuals, just as examining Justices discover facts from the examination of witnesses. The "Justices Act" of Victoria (No 1105) provides by s 20 that a summons to a person to attend before Justices as a witness shall be directed to any person who appears "likely to be able to give material evidence." Similar provisions are contained in the Justices Acts of the other States. They do not, of course, apply to corporations. s 15C deals specifically with the production of documents belonging to corporations, although the "person" mentioned in s 15B may also be required to produce documents. A fair inference is that s 15B was not intended to apply to corporations quoad hoc . And, if not quoad hoc , why at all? Again, knowledge, information and belief cannot, except in a technical sense, be imputed to a body corporate. It is true that under the old Chancery practice, a corporation made defendant to a Bill was required to make answer to the plaintiff's interrogatories under its corporate seal, to the best of its knowledge, information and belief. But that requirement was for the purposes of pleading, and not of evidence. A corporation cannot, of course, be a witness.

If it had been intended that s 15B should apply to corporations, one might have expected that it would have contained a provision that the answer should be made under the corporate seal, or by some member or officer appointed by the corporation for the purpose of making answer, according to the practice of this court, as well as the High Court of Justice in England, and the Australian Supreme Courts with regard to discovery, and that the answer so given should be admissible against the corporation. I do not think that either the old practice of the court of Chancery and of the Australian Courts, which have not adopted the Judicature Acts, or the practice of those Courts which have adopted them, can be regarded as incorporated by implication in s 15B.

Reference was made to the provision in s 15B (4) that the answer of a "person" to questions shall not be admissible in evidence against him except in proceedings for an offence under the Act, from which it may be inferred that it was intended that it should be used in such proceedings. I agree, but I do not think that this provision carries the argument any further. The provision is by way of protection only, and is equally valuable and applicable, whether "person" includes corporations or not.

For these reasons, I have come to the conclusion that a contrary intention appears, or that in s 15B the word "person" does not include corporations. I think, therefore, that the appeal must be allowed.