case_text: 140A(3) in terms, imposes liability directly on a licensee by requiring it not to breach a condition of its licence set out in cl 8(1) of Sch 2 to the Act. That liability is not a vicarious liability imposed on Radio 2UE for the conduct of its presenters, but a direct liability on it: Hamilton v Whitehead [1988] HCA 65 ; (1988) 166 CLR 121 at 127-128. There, Mason CJ, Wilson and Toohey JJ held that when an employee acted in the course of his or her employment he or she did so as the embodiment of the corporate employer: Hamilton 166 CLR at 127; Tesco Supermarkets Ltd v Nattrass [1971] UKHL 1 ; [1972] AC 153 at 170 per Lord Reid. Under s 140A(3) a corporation will incur liability for what its agent, Mr Laws, did or failed to do to comply with the disclosure standard. This is because Mr Laws was acting as the licensee when using its licence to broadcast his program. Mason CJ, Wilson and Toohey JJ said of a provision similar to s 140A(3) in Hamilton 166 CLR at 127 that it: "... speaks directly to the company. It is not a case of a company being made liable for an act performed by a servant of the company on its behalf. The liability imposed is direct, not vicarious. The distinction was drawn by Viscount Haldane LC in Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd ([1915] AC 705 at p 173). Its significance is explained by Lord Reid in Tesco Supermarkets Ltd v Nattrass ([1972] AC 153 at p 170): 'I must start by considering the nature of the personality which by a fiction the law attributes to a corporation. A living person has a mind which can have knowledge or intention or be negligent and he has hands to carry out his intentions. A corporation has none of these: it must act through living persons, though not always one or the same person. Then the person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company . There is no question of the company being vicariously liable. He is not acting as a servant, representative, agent or delegate. He is an embodiment of the company or, one could say, he hears and speaks through the persona of the company , within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company. It must be a question of law whether, once the facts have been ascertained, a person in doing particular things is to be regarded as the company or merely as the company's servant or agent. In that case any liability of the company can only be a statutory or vicarious liability.' See also the statement of Denning LJ in H L Bolton (Engineering) Co Ltd v T J Graham & Sons Ltd ([1957] 1 QB 159 at p 172). There can be no doubt, on the facts of the present case, that the respondent, in placing the advertisement and in dealing with those who replied to it, was the company. He was its managing director and his mind was the mind of the company. The company therefore was liable as a principal for the breaches of s 169 of the Code. The liability was direct, not vicarious." (emphasis added)


case_outcome: applied

case_title: L Vogel & Sons Pty Ltd v Anderson (1968) 120 CLR 157

case_text: arriving at the appropriate pecuniary penalties to be imposed for multiple contraventions, a court must first assess individual penalties for each contravention. But, before finalising the civil penalty orders the Court must look at and, if need be, adjust the resulting total effect of the individual orders it is considering, so as to produce an overall set of civil penalty orders appropriate to deal with all the contraventions. In other words, the totality principle applicable in passing criminal sentences should be adapted to apply to the overall civil penalty orders imposed on a contravenor: Mill v The Queen [1988] HCA 70 ; (1988) 166 CLR 59 at 62-63 per Wilson, Deane, Dawson, Toohey and Gaudron JJ, applied in a civil penalty context by Stone and Buchanan JJ in Mornington Inn (2008) 168 FCR at 408 [91]; see too at 397-398 [42]-[45]; see also per Gyles J who dissented in the result but not on the principle's applicability at 386-387 [5]-[9]. Where contraventions are separate offences in law but are substantially contemporaneous and connected, the Court must have regard to the totality principle in fixing the individual penalties: L Vogel & Sons Pty Ltd v Anderson (1968) 120 CLR 158 at 168 per Taylor, Menzies and Owen JJ. The Court must also have regard to the relative closeness of the relationship in time and character of the offences (or contraventions): Mill 166 CLR at 64.


case_outcome: discussed

case_text: Lamb v Cotogno [1987] HCA 47 ; (1987) 164 CLR 1 at 8 per Mason CJ, Brennan, Deane, Dawson and Gaudron JJ cited with approval Pratt LCJ's explanation in Wilkes v Wood [1763] EngR 103 ; (1763) Lofft 1 at 19 [98 ER 489 at 498-499] that exemplary damages are awarded "as a punishment to the guilty, to deter from any such proceeding for the future and as a proof of the detestation of the jury to the action itself". The Court held in Lamb 164 CLR at 8-11 that the objects of an award of exemplary or punitive damages include: • punishment of a defendant; • deterrence of that defendant and others; and • marking the Court's condemnation of the defendant's behaviour. The fact that a defendant who is covered by compulsory third party motor vehicle insurance and so will not pay the sum awarded as exemplary damages from his, her or its own pocket, or that the defendant is the insurer, does not restrict the power of the court to award exemplary damages: Lamb 164 CLR at 11; Gray v Motor Accident Commission (1998) 196 CLR 1 at 12-13 [32]-[36] per Gleeson CJ, McHugh, Gummow and Hayne JJ, 29 [87] per Kirby J, 50 [141] per Callinan J.


case_outcome: cited

case_text: Victoria v Australian Building Construction Employees' and Builders Labourers' Union [1982] HCA 31 ; (1982) 152 CLR 25 at 98 as Mason J spoke of "... the overriding importance of freedom of discussion and speech", adding "without information, there can be no meaningful discussion": see too Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45 ; (1992) 177 CLR 106 at 139-140 per Mason CJ. It is now established that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is the correlative of the interest in receiving it: Lange v Australian Broadcasting Corporation [1997] HCA 25 ; (1997) 189 CLR 520 at 571 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ. The media fulfil a vital role in the ability of the Australian community and, in particular, electors to engage in the discussion of government and political matters, and ss 3 and 4(1) of the Act, in part, recognise this.


case_title: Lukatela v Brich (2008) 223 FLR 1

case_text: assessment of a pecuniary penalty that is appropriate, having regard to all relevant factors under s 205F(3) is, like a criminal sentence, the result of the "process of instinctive synthesis" described in Markarian 228 CLR at 373-374 [36]-[37] and Wong v The Queen [2001] HCA 64 ; (2001) 207 CLR 584 at 611-612 [74] - [76] per Gaudron, Gummow and Hayne. If what is suggested by the parties as an appropriate penalty is unreasonable or plainly unjust, the court can reject it on similar principles to those used when sentences are either manifestly excessive or inadequate: cf Markarian 228 CLR at 370-371 [25]; Lukatela v Birch (2008) 223 FLR 1 at 7 [25]-[26]. In Minister for Industry Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR p41-993 at 48,632 [77] Branson, Sackville and Gyles JJ said: "Just as the criminal court will take into account the prosecution's views on the appropriate sentence, so the court in the civil penalty case, as NW Frozen Foods explained, will take account of the regulator's position. But in neither case is the court relieved from the responsibility of exercising its own judgment as to the appropriate sentence (in criminal cases), or whether the proposed penalty is within the appropriate range for the contravention (in civil penalty cases). In each case, the Court should be satisfied that it is being given accurate, reliable and complete information on critical questions." Some aspects of the totality principle are not as easily applied to pecuniary penalties as to sentences of imprisonment using the method preferred in Mill 166 CLR at 63. The High Court suggested its preference for making sentences wholly or partially concurrent, where practicable, to reflect the appropriate overall punishment in the ultimate total result rather than lowering individual sentences below what would otherwise be appropriate to reflect the fact that a number of sentences were being imposed: Mill 166 CLR at 63; RH McL v The Queen [2000] HCA 46 ; (2000) 203 CLR 452 at 457 [15] - [16] , 462-464 [32]-[34] per Gleeson CJ, Gaudron and Callinan JJ, 476 [75] per McHugh, Gummow and Hayne JJ; see too Lukatela 223 FLR at 15-16 [75]-[77] where I discussed the principle. Concurrent pecuniary penalties cannot be imposed. So the Court must consider the overall burden imposed by the set of pecuniary penalties to assess whether, in totality, the burden is greater that is warranted by the contraventions in all of the circumstances: see too s 205F(3). In fixing the penalties below I have had regard to the totality principle as explained above.


case_text: as there is no single, correct sentence, so too there is no single, correct amount of a pecuniary penalty: cp Markarian v The Queen [2005] HCA 25 ; (2005) 228 CLR 357 at 371 [27] per Gleeson CJ, Gummow, Hayne and Callinan JJ. In arriving at an appropriate penalty, a court must give careful attention to the maximum provided for in the Act. The maximum invites comparison between the worst possible case and the case before the Court. And the maximum can provide a yardstick when balanced with the other relevant factors: Markarian 228 CLR at 372 [30]-[31]. In this respect, ordinarily the worst possible case for a civil penalty would not be equivalent to the worst possible case for a criminal penalty under the corresponding section in the Act. That is because, first, the purpose of the Parliament providing for the civil penalty was to enable the Authority to use that power to address conduct not warranting the use of the corresponding criminal provision or the suspension or cancellation of a licence. Secondly, if a person has been convicted of an offence (e.g. under s 139(3)) constituted by substantially the same conduct as attracts a civil penalty (e.g. under s 140A(3)) then s 205L prohibits the Court making a civil penalty order against that person. And, s 205M stays civil penalty proceedings if criminal proceedings have been or are later commenced in respect of substantially the same conduct. If the person is convicted, then s 205M(2) provides for the civil penalty proceedings to be dismissed, but the stay is lifted if the person is acquitted. Conversely, s 205N authorises criminal proceedings to be commenced in the opposite situation; i.e. after a civil penalty order has been made. This preserves the option of later prosecution where, for example further evidence has come to light showing that a more severe penalty is called for than that in the civil penalty order. There is a prosecutorial discretion to bring criminal proceedings under s 205N. Ordinarily, some enlivening factor must arise after the conclusion of the civil penalty order proceedings to warrant the initiation of the criminal proceedings so that they would not be seen as an abuse of process in light of the policy in ss 205L and 205M (e.g. if facts subsequently were discovered, casting a different light on an apparently middle range contravention for which a civil penalty was appropriate, prosecution might be warranted). The assessment of a pecuniary penalty that is appropriate, having regard to all relevant factors under s 205F(3) is, like a criminal sentence, the result of the "process of instinctive synthesis" described in Markarian 228 CLR at 373-374 [36]-[37] and Wong v The Queen [2001] HCA 64 ; (2001) 207 CLR 584 at 611-612 [74] - [76] per Gaudron, Gummow and Hayne. If what is suggested by the parties as an appropriate penalty is unreasonable or plainly unjust, the court can reject it on similar principles to those used when sentences are either manifestly excessive or inadequate: cf Markarian 228 CLR at 370-371 [25]; Lukatela v Birch (2008) 223 FLR 1 at 7 [25]-[26]. In Minister for Industry Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR p41-993 at 48,632 [77] Branson, Sackville and Gyles JJ said: "Just as the criminal court will take into account the prosecution's views on the appropriate sentence, so the court in the civil penalty case, as NW Frozen Foods explained, will take account of the regulator's position. But in neither case is the court relieved from the responsibility of exercising its own judgment as to the appropriate sentence (in criminal cases), or whether the proposed penalty is within the appropriate range for the contravention (in civil penalty cases). In each case, the Court should be satisfied that it is being given accurate, reliable and complete information on critical questions."


case_text: arriving at the appropriate pecuniary penalties to be imposed for multiple contraventions, a court must first assess individual penalties for each contravention. But, before finalising the civil penalty orders the Court must look at and, if need be, adjust the resulting total effect of the individual orders it is considering, so as to produce an overall set of civil penalty orders appropriate to deal with all the contraventions. In other words, the totality principle applicable in passing criminal sentences should be adapted to apply to the overall civil penalty orders imposed on a contravenor: Mill v The Queen [1988] HCA 70 ; (1988) 166 CLR 59 at 62-63 per Wilson, Deane, Dawson, Toohey and Gaudron JJ, applied in a civil penalty context by Stone and Buchanan JJ in Mornington Inn (2008) 168 FCR at 408 [91]; see too at 397-398 [42]-[45]; see also per Gyles J who dissented in the result but not on the principle's applicability at 386-387 [5]-[9]. Where contraventions are separate offences in law but are substantially contemporaneous and connected, the Court must have regard to the totality principle in fixing the individual penalties: L Vogel & Sons Pty Ltd v Anderson (1968) 120 CLR 158 at 168 per Taylor, Menzies and Owen JJ. The Court must also have regard to the relative closeness of the relationship in time and character of the offences (or contraventions): Mill 166 CLR at 64. Some aspects of the totality principle are not as easily applied to pecuniary penalties as to sentences of imprisonment using the method preferred in Mill 166 CLR at 63. The High Court suggested its preference for making sentences wholly or partially concurrent, where practicable, to reflect the appropriate overall punishment in the ultimate total result rather than lowering individual sentences below what would otherwise be appropriate to reflect the fact that a number of sentences were being imposed: Mill 166 CLR at 63; RH McL v The Queen [2000] HCA 46 ; (2000) 203 CLR 452 at 457 [15] - [16] , 462-464 [32]-[34] per Gleeson CJ, Gaudron and Callinan JJ, 476 [75] per McHugh, Gummow and Hayne JJ; see too Lukatela 223 FLR at 15-16 [75]-[77] where I discussed the principle. Concurrent pecuniary penalties cannot be imposed. So the Court must consider the overall burden imposed by the set of pecuniary penalties to assess whether, in totality, the burden is greater that is warranted by the contraventions in all of the circumstances: see too s 205F(3). In fixing the penalties below I have had regard to the totality principle as explained above.


case_text: assessment of a pecuniary penalty that is appropriate, having regard to all relevant factors under s 205F(3) is, like a criminal sentence, the result of the "process of instinctive synthesis" described in Markarian 228 CLR at 373-374 [36]-[37] and Wong v The Queen [2001] HCA 64 ; (2001) 207 CLR 584 at 611-612 [74] - [76] per Gaudron, Gummow and Hayne. If what is suggested by the parties as an appropriate penalty is unreasonable or plainly unjust, the court can reject it on similar principles to those used when sentences are either manifestly excessive or inadequate: cf Markarian 228 CLR at 370-371 [25]; Lukatela v Birch (2008) 223 FLR 1 at 7 [25]-[26]. In Minister for Industry Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR p41-993 at 48,632 [77] Branson, Sackville and Gyles JJ said: "Just as the criminal court will take into account the prosecution's views on the appropriate sentence, so the court in the civil penalty case, as NW Frozen Foods explained, will take account of the regulator's position. But in neither case is the court relieved from the responsibility of exercising its own judgment as to the appropriate sentence (in criminal cases), or whether the proposed penalty is within the appropriate range for the contravention (in civil penalty cases). In each case, the Court should be satisfied that it is being given accurate, reliable and complete information on critical questions." Their Honours had emphasised earlier in their reasons that in civil penalty proceedings the view of the regulator, as a specialist body, is a relevant but not determative consideration on the question of penalty, adding ( Mobil (2004) ATPR p41-999 at 48,626 [51(iv)]): "In particular, the views of the regulator on matters within its expertise (such as the ACCC's views as to the deterrent effect of a proposed penalty in a given market) will usually be given greater weight than its views on more "subjective" matters." In Australian Competition and Consumer Commissioner v Qantas Airways Ltd (2008) 253 ALR 89 at 107-108 [25]-[27] Lindgren J identified 11 propositions relating to the fixing of penalties under the Trade Practices Act as flowing from the decisions in NW Foods [1996] FCA 1134 ; 71 FCR 285 and Mobil (2004) ATPR p41-993 (and these were recently applied by Jacobson J in Australian Competition and Consumer Commission v PRK Corporation Pty Ltd [2009] FCA 715 at [20] - [24] ). These included the propositions that: the Court is not obliged to commence its reasoning with the level of the agreed penalty and limit itself to considering whether that penalty is within the range; the Court is entitled to address the question independently at the outset of its reasoning; the admissions and agreed facts should not be approached as if they had been "tailored or modified to reflect the difficulties faced by the [regulator] in proving its case"; the regulator should always explain to the Court the process of reasoning said to justify a discounted penalty. Radio 2UE argued that the joint submissions had identified the Authority's concern about Mr Laws' inappropriate attitude to the disclosure standard and the failure by Radio 2UE to comply with it, but submitted that there were substantial mitigating factors warranting a lower penalty. Radio 2UE argued that there was a public interest in bringing the litigation to a speedy resolution resulting in savings of resources for the Authority and the Court: Mobil (2004) ATPR p41-993 at 48,624 [41] and 48,627 [53]. However, as Branson, Sackville and Gyles JJ said there, arguments in favour of the negotiation of settlements have to take account of the fact that it is the Court that bears the ultimate responsibility for determining the appropriate penalty: Mobil (2004) ATPR p41-993 at 48,627 [53]. 2. The nature and extent of the contraventions: s 205F(3)(A) The parties submitted that the 13 contraventions related only to Mr Laws' program and not to any other programs broadcast by Radio 2UE. They pointed to the fact that Mr Laws ceased to be an on-air presenter for Radio 2UE following his retirement on 30 November 2007. And, the parties submitted that it was relevant that Fairfax Media acquired Radio 2UE on 9 November 2007 and that only the last four contraventions occurred after that time and then on the last day of Mr Laws' career. The Authority argued that Mr Laws' commercial agreements were recorded on the register and there were various on-air disclosures even though not all of them were compliant with the disclosure standard. It argued that Mr Laws has now retired and there was no specific deterrent necessary for his conduct. It argued that the new compliance regime adequately addressed the concerns arising from the previous regime. The Authority noted that Radio 2UE had not deliberately engaged in the conduct and had taken steps to prevent it. It accepted that Radio 2UE had acted bona fide, even if it had been ineffectual, in seeking to regulate Mr Laws.


case_outcome: followed

case_text: Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70 ; (2008) 168 FCR 383 at 404-405 [73] - [76] , Stone and Buchanan JJ considered the applicability to civil penalty proceedings of the common law principle of affording a discount to a sentence imposed after a plea of guilty. Stone and Buchanan JJ concluded that the rationale for providing a discount for an early plea of guilty in a criminal case did not apply neatly to a case where a civil penalty is sought and the case proceeded on pleadings. They said, that nonetheless, it should be accepted for the same reasons as given in Cameron [2002] HCA 6 ; 209 CLR 339 , that a discount should not be available simply because a respondent has spared the community the cost of a contested trial. They held that the benefit of such a discount should be reserved for cases where it can be fairly said that an admission of liability, first had indicated an acceptance of wrongdoing and a suitable and credible expression of regret, and or secondly, had indicated a willingness to facilitate the course of justice: Mornington Inn 168 FCR at 405 [76]. In arriving at the appropriate pecuniary penalties to be imposed for multiple contraventions, a court must first assess individual penalties for each contravention. But, before finalising the civil penalty orders the Court must look at and, if need be, adjust the resulting total effect of the individual orders it is considering, so as to produce an overall set of civil penalty orders appropriate to deal with all the contraventions. In other words, the totality principle applicable in passing criminal sentences should be adapted to apply to the overall civil penalty orders imposed on a contravenor: Mill v The Queen [1988] HCA 70 ; (1988) 166 CLR 59 at 62-63 per Wilson, Deane, Dawson, Toohey and Gaudron JJ, applied in a civil penalty context by Stone and Buchanan JJ in Mornington Inn (2008) 168 FCR at 408 [91]; see too at 397-398 [42]-[45]; see also per Gyles J who dissented in the result but not on the principle's applicability at 386-387 [5]-[9]. Where contraventions are separate offences in law but are substantially contemporaneous and connected, the Court must have regard to the totality principle in fixing the individual penalties: L Vogel & Sons Pty Ltd v Anderson (1968) 120 CLR 158 at 168 per Taylor, Menzies and Owen JJ. The Court must also have regard to the relative closeness of the relationship in time and character of the offences (or contraventions): Mill 166 CLR at 64.


case_title: NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285

case_text: the views of the Authority will be of significant weight in assisting the Court to fix an appropriate pecuniary penalty for a contravention of s 140A(3) of the Act. The Authority's functions and role under the Act enable it to offer insight into the circumstances and impact of the contravention and the measures taken or proposed to guard against similar conduct in the future. And, one purpose of enacting the civil penalty provisions was to give the Authority access to a greater range of enforcement measures. Thus, its choice of remedy and the manner in which it ought be imposed are important factors to weigh in assessing the appropriateness of its suggested pecuniary penalties: cp NW Frozen Foods Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 at 290G-291C, where Burchett and Kiefel JJ said: "Because the fixing of the quantum of a penalty cannot be an exact science, the Court, in such a case, does not ask whether it would without the aid of the parties have arrived at the precise figure they have proposed, but rather whether their proposal can be accepted as fixing an appropriate amount. There is an important public policy involved. When corporations acknowledge contraventions, very lengthy and complex litigation is frequently avoided, freeing the courts to deal with other matters, and investigating officers of the Australian Competition and Consumer Commission to turn to other areas of the economy that await their attention. At the same time, a negotiated resolution in the instant case may be expected to include measures designed to promote, for the future, vigorous competition in the particular market concerned. These beneficial consequences would be jeopardised if corporations were to conclude that proper settlements were clouded by unpredictable risks. A proper figure is one within the permissible range in all the circumstances. The Court will not depart from an agreed figure merely because it might otherwise have been disposed to select some other figure, or except in a clear case." Their Honours emphasised that the Court in such cases recognised that the selection of a penalty is not an exact science and that, as in the formation of other discretionary judgments, there will usually be a range of penalties that could be appropriate. Generally, the Court does not undertake the exercise of fixing a penalty itself to assess whether it is prepared to give effect to the parties' suggestion: NW Foods 71 FCR at 291B-G. The assessment of a pecuniary penalty that is appropriate, having regard to all relevant factors under s 205F(3) is, like a criminal sentence, the result of the "process of instinctive synthesis" described in Markarian 228 CLR at 373-374 [36]-[37] and Wong v The Queen [2001] HCA 64 ; (2001) 207 CLR 584 at 611-612 [74] - [76] per Gaudron, Gummow and Hayne. If what is suggested by the parties as an appropriate penalty is unreasonable or plainly unjust, the court can reject it on similar principles to those used when sentences are either manifestly excessive or inadequate: cf Markarian 228 CLR at 370-371 [25]; Lukatela v Birch (2008) 223 FLR 1 at 7 [25]-[26]. In Minister for Industry Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR p41-993 at 48,632 [77] Branson, Sackville and Gyles JJ said: "Just as the criminal court will take into account the prosecution's views on the appropriate sentence, so the court in the civil penalty case, as NW Frozen Foods explained, will take account of the regulator's position. But in neither case is the court relieved from the responsibility of exercising its own judgment as to the appropriate sentence (in criminal cases), or whether the proposed penalty is within the appropriate range for the contravention (in civil penalty cases). In each case, the Court should be satisfied that it is being given accurate, reliable and complete information on critical questions." In Australian Competition and Consumer Commissioner v Qantas Airways Ltd (2008) 253 ALR 89 at 107-108 [25]-[27] Lindgren J identified 11 propositions relating to the fixing of penalties under the Trade Practices Act as flowing from the decisions in NW Foods [1996] FCA 1134 ; 71 FCR 285 and Mobil (2004) ATPR p41-993 (and these were recently applied by Jacobson J in Australian Competition and Consumer Commission v PRK Corporation Pty Ltd [2009] FCA 715 at [20] - [24] ). These included the propositions that: the Court is not obliged to commence its reasoning with the level of the agreed penalty and limit itself to considering whether that penalty is within the range; the Court is entitled to address the question independently at the outset of its reasoning; the admissions and agreed facts should not be approached as if they had been "tailored or modified to reflect the difficulties faced by the [regulator] in proving its case"; the regulator should always explain to the Court the process of reasoning said to justify a discounted penalty.


case_text: ss 205L or 205M apply, the apparent intention of the Parliament, was to exclude the use of the civil penalty order if criminal proceedings result in conviction. This is because the stamp or, possibility, of the conviction has characterised the contravention (even if only temporarily so, pending the determination of the criminal proceedings) as of a more serious kind. No doubt the civil penalty imposed would be relevant to the criminal penalty following conviction, where s 205N applies. But, s 205N must be read harmoniously with the legislative policy reflected in ss 205L and 205M: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 381-382 [69] - [71] per McHugh, Gummow, Kirby and Hayne JJ. The Parliament conferred power on the Court to impose and to determine the amount of any pecuniary penalty: s 205F(1), (3). For many years the Court has recognised the ability of parties to such proceedings to make a joint or agreed submission as to the civil penalties to be imposed for contraventions of legislation. Agreement as to the suggested result can be reached prior to the institution of the proceedings for civil penalties, as happened here. Ordinarily, there will be savings in time and public and private expense that can be expected from parties putting forward, in a responsible manner (as they have in these proceedings) agreed contraventions and suggested penalties. The Court may reject the suggested penalty, and impose a different one. But, in the ordinary case the use of this sensible approach will result in a speedy determination of the proceedings. Such a consequence is obviously of considerable benefit to the community; a lengthy and expensive trial and possibly an appeal or appeals are averted and a just penalty is imposed. But there is another, very important benefit in the approach; it gives the wrongdoer a degree of certainty and a speedy imposition of the penalty. Where a result is uncertain, such as the outcome of a contested trial and the consequent penalty (whether a criminal sentence or the imposition of a civil penalty), it is all too human for a wrongdoer to procrastinate in the hope that something will work out favourably. But if a wrongdoer (such as a person who contravenes a civil penalty provision in legislation) can have relative assurance that, however severe, an agreed penalty is likely to be imposed promptly, that degree of certainty is a powerful spur to action.


case_text: aspects of the totality principle are not as easily applied to pecuniary penalties as to sentences of imprisonment using the method preferred in Mill 166 CLR at 63. The High Court suggested its preference for making sentences wholly or partially concurrent, where practicable, to reflect the appropriate overall punishment in the ultimate total result rather than lowering individual sentences below what would otherwise be appropriate to reflect the fact that a number of sentences were being imposed: Mill 166 CLR at 63; RH McL v The Queen [2000] HCA 46 ; (2000) 203 CLR 452 at 457 [15] - [16] , 462-464 [32]-[34] per Gleeson CJ, Gaudron and Callinan JJ, 476 [75] per McHugh, Gummow and Hayne JJ; see too Lukatela 223 FLR at 15-16 [75]-[77] where I discussed the principle. Concurrent pecuniary penalties cannot be imposed. So the Court must consider the overall burden imposed by the set of pecuniary penalties to assess whether, in totality, the burden is greater that is warranted by the contraventions in all of the circumstances: see too s 205F(3). In fixing the penalties below I have had regard to the totality principle as explained above.


case_text: the Parliament adopted the well recognised device of a civil penalty as a remedy for contraventions of the Act, it did not exclude, expressly or by necessary implication, the Court from having regard to objects that are not exclusively criminal such as punishment or condemnation, in addition to deterrence: see too CEPU 162 FCR at 477-479 [19]-[28]. In Rich v Australian Securities and Investments Commission [2004] HCA 42 ; (2004) 220 CLR 129 at 146 [35] Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said that classification of proceedings as protective or penal wrongly assumed that those two objects were mutually exclusive. They held that a law may bear several characters, as may proceedings that seek relief which, if granted, would protect the public and penalise the defendant. Talk back radio and current affairs programs of the kind that Mr Laws had, occupy a significant place in commercial radio broadcasting. Presenters of such programs can exert considerable influence in shaping community views.


case_text: chairman of the Authority, Chris Chapman, explained its reasons for commencing these proceedings in a media release. Radio 2UE relied on the media release, its dissemination and its terms as evidence of harm to Radio 2UE's reputation in respect of compliance and of its public denunciation in respect of the 13 contraventions (cf Ryan v The Queen [2001] HCA 21 ; (2001) 206 CLR 267 at 284-286 [52] - [59] per McHugh J, 303-304 [123] per Kirby J, 318-319 [177] per Callinan J). Mr Chapman said: "ACMA has taken the step of applying for civil penalty orders against 2UE, having earlier tried to address 2UE's compliance failures through other means. These latest breaches occurred at a time when 2UE had given ACMA an enforceable undertaking to improve its performance, particularly in relation to the John Laws Morning Show.... However, ACMA —and the Australian Broadcasting Authority before it— has emphasised in previous findings against 2UE that the obligation to comply with program standards lies with the licensee itself; in fact it goes to the heart of a licensee's obligations . Broadcasting licences are not given out lightly by government and convey significant benefit to those to whom a licence is granted . It is a licensee's unrelenting responsibility to manage its business, including its presenters and production staff, so as to ensure satisfactory compliance with the regulatory requirements. Company management put at real risk the retention of these licences when they allow on-air personalities or other staff to breach the rules. One consideration informing the Authority's agreement to consenting to the civil penalty order was its assessment that Fairfax genuinely accepts that proposition." (emphasis added) The grant of the licence is a privilege to use the public resource of the radio spectrum. Abuse of the privilege, by breaching a condition of a licence, attracts liability under ss 139(3) and 140A(3). The primary purpose of s 140A(3) is to protect the public by holding licensees to the standard of conduct that their licence requires them to observe. The disclosure standard addresses a particular, and insidious, means of abusing the privilege of a commercial radio broadcasting licence. That standard recognised the significant degree of influence current affairs presenters could exert in shaping community views in Australia (see s 4(1)). The more prominent the presenter, the greater the potential he or she has to exert influence in shaping community views.


case_text: parties urged that no difference in approach to fixing an agreed civil penalty was called for under the Act as compared to the approach taken under legislation such as under s 76 of the Trade Practices Act 1974 (Cth) and s 42Y of the Therapeutic Goods Act 1989 (Cth). They relied on what Flick J had said in Secretary, Department of Health and Aging v Pagasa Australia Pty Ltd [2008] FCA 1545 at [17] , [23]-[25]. He helpfully reviewed a large number of cases imposing civil penalties arising under a number of Acts: Pagasa [2008] FCA 1545 at [23] - [27] , concluding at [27]: "Although the form of words set forth in other legislative provisions may be the same or comparable to those employed in the 1989 Act, the legislative mandate that the Court " must have regard to all relevant matters " in s 42Y(3) assumes obvious importance. It is that mandate which directs attention to those more specific matters which can only be discerned from an analysis of the 1989 Act itself. Of central importance in identifying those matters which are " relevant " — and which must therefore be taken into account — are the objects and purposes of the 1989 Act." I agree with Flick J's approach to the construction of provisions like s 205F(3) of the Act. French J remarked in CSR (1991) ATPR p41-076 at 52,152 the other general objects of the criminal law apart from deterrence, namely retribution and rehabilitation, had no "... part to play in economic regulation of the kind contemplated by Pt IV" of the Trade Practices Act .


case_title: Tesco Supermarkets Ltd v Nattrass [1971] UKHL 1 ; [1972] AC 153


case_text: primary purpose of civil penalties is deterrence: Trade Practices Commission v CSR Limited (1991) ATPR p41-076 at 52,152 per French J. Hence, in assessing the penalty to be imposed, a court will consider whether, in all the circumstances relevant to be taken into account (here under s 205F(3)), others would be deterred by the penalty and at the same time the licensee will be penalised or punished appropriately. The range of relevant matters under s 205F(3) ordinarily will include (borrowing from what French J suggested in CSR (1991) ATPR p41-076 at 52,152-52,153): I agree with Flick J's approach to the construction of provisions like s 205F(3) of the Act. French J remarked in CSR (1991) ATPR p41-076 at 52,152 the other general objects of the criminal law apart from deterrence, namely retribution and rehabilitation, had no "... part to play in economic regulation of the kind contemplated by Pt IV" of the Trade Practices Act . The pecuniary penalties must put a price on the contraventions that is sufficiently high to deter repetition by Radio 2UE as the contravenor and by others who might be tempted to contravene the Act and the disclosure standard: see CSR (1991) ATPR p41-076 at 52,152 per French J. I am of opinion that there will be a substantial deterrent effect given to licensees by the penalties I will impose. The kind of contraventions that Mr Laws caused Radio 2UE to make and its inadequate attention to the requirements of compliance must be deterred if the purpose of the disclosure standard is to be upheld. I am satisfied that there will not be a repetition of Mr Laws' conduct only because he has retired from presenting his program on Radio 2UE. Radio 2UE has not had to deal with or test whether Mr Laws would now comply under its new measures. However, I am also satisfied that Radio 2UE has implemented genuine and satisfactory changes to its compliance systems that are likely to lead to compliance by its other presenters. And, I am also satisfied that no bad faith was involved on the part of Radio 2UE's management or Mr Mott. Licensees must be deterred from taking lackadaisical attitudes to compliance with their statutory and licence obligations. Takeovers and changes of control in ownership occur on a fairly regular basis in the broadcasting industry. Such events are not an excuse for a licensee to fail to comply with the Act, the disclosure standard or its licence. If Mr Mott and all the senior management were too busy to protect the very basis which generated Radio 2UE's entitlement to earn income, namely its licence, then a clear message must be sent by condign penalisation of that attitude. Such an attitude is unacceptable. It demonstrates an inattention to the public trust in commercial radio broadcasting licensees.


case_title: Victoria v Australian Building Construction Employees' and Builders Labourers' Union [1982] HCA 31 ; (1982) 152 CLR 25


case_title: Weininger v The Queen (2003) [2003] HCA 14 ; 212 CLR 629

case_text: do not consider that in these proceedings it is appropriate to punish Radio 2UE by imposing a heavier penalty for the 13 contraventions because of its further breaches of the enforceable undertaking. The circumstances in which those further breaches occurred are nonetheless relevant, in accordance with s 205F(3) of the Act, for the purpose of assessing the conduct of Radio 2UE, because of their contemporaneity and interrelation with the 13 contraventions and the extent to which they went unremedied: cf Weininger v The Queen [2003] HCA 14 ; (2003) 212 CLR 629 at 640 [32] per Gleeson CJ, McHugh, Gummow and Hayne JJ. 11. Alternative enforcement options The Centre identified other enforcement powers that were available to the Authority, which it had not sought to use in this matter. It relied on the context of the Parliament's decision to expand the potential remedies available to the Authority. Under s 143(1) the Authority was given power, by notice in writing, to suspend a licence for such period, not exceeding three months as was specified in the licence or to cancel the licence where a commercial radio broadcasting licensee breached a condition of the licence. In addition, s 205X provided the Authority with power to apply to the Court, where a person had given an enforceable undertaking under s 205W that the Authority considered had been breached, for orders that included any order that the Court thought appropriate (s 205X(2)(d)). The Centre argued, that accordingly, the Authority had formed the view that it would proceed with the less drastic remedy of seeking pecuniary penalties under s 205F and declaratory relief. The Authority and Radio 2UE both argued that the availability of other sanctions was not relevant to the quantum of a civil penalty to be imposed and that Radio 2UE should not be penalised more severely because of the existence of other enforcement remedies which the Authority chose not to employ. I accept that submission. 12. Deterrence A licensee cannot assume that nothing will go wrong. Far less could Radio 2UE have assumed this with Mr Laws who, after all, had been the cause of giving the enforceable undertaking. Radio 2UE had a duty to be vigilant to ensure compliance with its licence, the disclosure standard and the Act. Instead, Radio 2UE committed the contraventions when it permitted Mr Laws to use its licence knowing that, first, Mr Laws had a history of previous contraventions of the disclosure standard (cp Weininger 212 CLR at 640 [32] per Gleeson CJ, McHugh, Gummow and Hayne JJ), secondly, he had an antipathy to the disclosure standard, thirdly, he had six very substantial commercial agreements and, fourthly, he made frequent references during his program to his sponsors, their products and services. But for Radio 2UE's mitigating conduct, I would have imposed higher penalties for these serious breaches. Rather than making declarations, I consider that it is appropriate to state each contravention and the pecuniary penalty I have imposed for it in the formal orders. The Authority, licensees and the public will be able to relate the two together in that way. In my opinion, these contraventions should be marked with severe and substantial pecuniary penalties. The agreed penalties are, overall, but with the three exceptions I have noted, manifestly inadequate, indeed, negligible. To be sure, the Parliament intended that ss 140A and 205F would be a means of dealing with contraventions not calling for more severe sanctions such as suspension of a licence or its cancellation. The Chairman of the Authority aptly described the obligation to comply with the disclosure standard as going to the heart of a licensee's obligations.


case_text: assessment of a pecuniary penalty that is appropriate, having regard to all relevant factors under s 205F(3) is, like a criminal sentence, the result of the "process of instinctive synthesis" described in Markarian 228 CLR at 373-374 [36]-[37] and Wong v The Queen [2001] HCA 64 ; (2001) 207 CLR 584 at 611-612 [74] - [76] per Gaudron, Gummow and Hayne. If what is suggested by the parties as an appropriate penalty is unreasonable or plainly unjust, the court can reject it on similar principles to those used when sentences are either manifestly excessive or inadequate: cf Markarian 228 CLR at 370-371 [25]; Lukatela v Birch (2008) 223 FLR 1 at 7 [25]-[26]. In Minister for Industry Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR p41-993 at 48,632 [77] Branson, Sackville and Gyles JJ said: "Just as the criminal court will take into account the prosecution's views on the appropriate sentence, so the court in the civil penalty case, as NW Frozen Foods explained, will take account of the regulator's position. But in neither case is the court relieved from the responsibility of exercising its own judgment as to the appropriate sentence (in criminal cases), or whether the proposed penalty is within the appropriate range for the contravention (in civil penalty cases). In each case, the Court should be satisfied that it is being given accurate, reliable and complete information on critical questions."


case_text: The applicant has not identified any error on the part of the Federal Magistrate in dismissing his application on the basis that it had no reasonable prospects of success. The grounds contained in the affidavit accompanying the application for leave to appeal are misconceived and no arguable basis has been advanced upon which an appeal might succeed. The applicant has not satisfied the test in Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 to warrant a grant of leave to appeal. The decision is not attended with sufficient doubt to warrant its reconsideration. 14 The applicant has failed to show that Barnes FM erred in the exercise of her discretion. In the light of the applicant's extensive litigation history, I am satisfied that no substantial injustice would result if leave were refused, even supposing her Honour's decision to be wrong. The application for leave to appeal should be dismissed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 23 December 2008 The Applicant appeared in person. Solicitor for the First Respondent: Sparke Helmore Date of Hearing: 15 December 2008 Date of Judgment: 15 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1968.html


case_outcome: considered

case_text: As I pointed out in SZFMW v Minister for Immigration and Citizenship [2008] FCA 1862 at [12] , the Full Court in Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 51 ; (2004) 146 FCR 10 applied Anshun in the context of judicial review of administrative action and said at [37] that where an issue was so relevant to the subject matter of the earlier action that it would be unreasonable not to have raised it at that time, it is an abuse of process to endeavour to raise that issue for the first time in a subsequent proceeding between the parties. Further, in Metwally v University of Wollongong [1985] HCA 28 ; (1985) 60 ALR 68 , the High Court stated at [7] that: Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, either deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.


case_text: The applicant reapplied to the Federal Magistrates Court for a review of the Tribunal's decision. Federal Magistrate Barnes was satisfied (at [18]) that the application was, in effect, an attempt to reagitate the same issues that had been dealt with in past judicial review proceedings. For that reason, Barnes FM concluded that the application should be dismissed pursuant to rule 13.10(a). Her Honour also concluded that the proceedings were barred by the operation of the doctrine of Anshun estoppel (see Port of Melbourne Authority v Anshun Proprietary Limited [1981] HCA 45 ; (1981) 147 CLR 589). Any further arguments, including an argument based upon the High Court decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 228 CLR 294 , could, her Honour pointed out, have been raised in prior proceedings. 8 As I pointed out in SZFMW v Minister for Immigration and Citizenship [2008] FCA 1862 at [12] , the Full Court in Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 51 ; (2004) 146 FCR 10 applied Anshun in the context of judicial review of administrative action and said at [37] that where an issue was so relevant to the subject matter of the earlier action that it would be unreasonable not to have raised it at that time, it is an abuse of process to endeavour to raise that issue for the first time in a subsequent proceeding between the parties. Further, in Metwally v University of Wollongong [1985] HCA 28 ; (1985) 60 ALR 68 , the High Court stated at [7] that: Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, either deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.


case_title: SZFMW v Minister for Immigration and Citizenship [2008] FCA 1862


case_title: Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 51 ; (2004) 146 FCR 10


case_text: On 20 April 2006 receivers were appointed to the property of all of those named as defendants with exception of the seventh defendant, Bowesco Ltd which was subject to a private receiver appointed under a security. Freezing orders were made in relation to its property. The reasons for all the orders made were set out in Re Richstar Enterprises Pty Ltd; Australian Securities & Investments Commission v Carey (No 3) (2006) 232 ALR 577. Those orders commenced a long and winding trail of interlocutory processes involving the ultimate joinder of four additional defendants, orders in respect of each of them, other than the eleventh defendant, and variations to make all of the orders more effective and to deal with practical difficulties encountered in their administration. 3 The protective regime established by these proceedings has been extended from time to time. Orders presently in place in respect of the first, fifth to tenth and twelfth defendants have been further extended to 5pm today, 4 September 2007. Orders in relation to the second, third and fourth defendants, which are not before me for extension at this time, remain in force until 12 September 2007 in relation to the second and third defendants and the 26 September 2007, in relation to the fourth defendant. ASIC now seeks, by consent, to extend and vary the regime by orders which may broadly be described as follows: 1. Orders in terms of a proposed minute with respect to the first and fifth defendants. 2. The discharge of existing orders against the sixth and eighth defendants. 3. The extension of existing orders against the seventh, ninth and tenth defendants to 31 January 2008 unless otherwise discharged or varied. 4. The extension of existing orders against the twelfth defendant to 31 January 2008 subject to agreed amendments. For the reasons that follow I am satisfied that the orders proposed should be made. The Court's approach to consent orders generally 4 When the Court is presented with a proposed order, agreed between the parties, it must be satisfied, before making it, that it is within the power of the Court to make it and that the proposed order is appropriate. The requirement that the order be "appropriate" does not mean that the Court will refuse to make it simply because it thinks a different order would be preferable. This is particularly the case where the parties are properly advised by competent legal representatives. An appropriate order is one which lies within the range of orders that could reasonably be made on the materials before the Court. The limiting factor is that in making any order the Court exercises the judicial power of the Commonwealth and cannot simply rubber stamp what is proposed without consideration of its substance.


case_text: Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596, Mason CJ, Deane and McHugh JJ said (170 CLR at 598): 'It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment ...' In Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 it was held that reputation, including business or commercial reputation, is an interest that may attract the protection of the rules of procedural fairness. In the present case it may be accepted that, at the time the decision was made, the Administrators had been identified as both targets and examinees. Thus, in a practical sense, a grant of the status of eligible applicant was a step towards an examination which was either inevitable or highly likely. In my opinion, that practical consequence does not mean that the difference between the stages explained in Re Excel 52 FCR 69 can be elided. In Ainsworth Mason CJ, Dawson, Toohey and Gaudron JJ said (175 CLR at 576): '... what is decisive is the nature of the power, not the character of the proceeding which attends its exercise.' Either the statutory power is subject to the obligation to afford prior notice or it is not. The circumstances of the particular application for exercise of the power do not affect the question as to whether the implied obligation has any operation in relation to the power in question. The decision to authorise the Evans did not itself directly adversely affect the interests of others in the manner required to bring the statutory presumption into play. Ainsworth [1992] HCA 10 ; 175 CLR 564 concerned publication of a damning report. The same can be said of Testro Bros Pty Ltd v Tait [1963] HCA 29 ; (1963) 109 CLR 353 that was effectively overruled by Annetts v McCann (per Mason CJ, Dean and McHugh JJ 170 CLR at 598) and Ainsworth (per Mason CJ, Dawson, Toohey and Gaudron JJ 175 CLR at 576 577). For the sake of completeness I should deal with two arguments raised on behalf of ASIC, each of which I would reject if I had been of a different view concerning the duty to accord natural justice. The first was that the decision here was a step or stage in a process, the end result of which would entail procedural fairness ( Ainsworth per Mason CJ, Dawson, Toohey and Gaudron JJ 175 CLR at 578; South Australia v O'Shea [1987] HCA 39 ; (1987) 163 CLR 378 per Mason CJ at 389). It was argued that the position was not dissimilar to the lack of any requirement to afford a hearing prior to the commencement of a prosecution of a like proceeding ( Barton v The Queen [1980] HCA 48 ; (1980) 147 CLR 75 at 95; Cornall v AB (A Solicitor) [1995] 1 VR 372 at 396 397; Commissioner of Police v Reid 16 NSWLR at 461; Australian Securities and Investments Commission v Plymin (No 3) [2002] VSC 358 ; (2002) 170 FLR 128 at 135 136). In the first place, it is doubtful whether there is a single decision making process of the kind referred to in the present circumstances. The decision by ASIC in relation to authorisation involves different questions and different issues than would a decision to issue a summons by the Court or the conduct of the proceeding itself (cf McHugh J in Johns v Australian Securities Commission 178 CLR at 473 474 and see Re Excel 52 FCR at 83 84 and 86). It is difficult to see how failure to accord natural justice in relation to the decision in question could be cured by later events. In the second place, the examination procedure is not designed to accord natural justice to a party in relation to any allegations made, directly or indirectly, against the examinee. The process is inquisitorial rather than adversarial. There is no case put against the examinee or any case in reply. As Windeyer J said in Rees v Kratzmann (114 CLR at 80): 'The honest conduct of the affairs of companies is a matter of great public concern to-day. If the legislature thinks that in this field the public interest overcomes some of the common law's traditional consideration for the individual, then effect must be given to the statute which embodies this policy.' (See also Hamilton v Oades [1989] HCA 21 ; (1989) 166 CLR 486.) The fact that the Court maintains considerable control over the examination does not change the information gathering nature of the function being performed. The analogy with the institution of Court proceedings is not apt.


case_outcome: distinguished

case_text: Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596, Mason CJ, Deane and McHugh JJ said (170 CLR at 598): 'It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment ...' In Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 it was held that reputation, including business or commercial reputation, is an interest that may attract the protection of the rules of procedural fairness. It is also submitted that the common law right to maintain silence will be encroached upon. It is not clear to me that the so called common law right to silence is a right or interest in the sense outlined in Annetts v McCann [1990] HCA 57 ; 170 CLR 596 . The only authority that was cited to support that proposition, apart from the reference in the passage from the reasons of Dawson J in Johns v Australian Securities Commission 178 CLR at 437, was that of Branson J in Re Cortaus Ltd (in liq); Sheahan v Joye (No 2) (1996) 20 ACSR 576 at 578. That was an examination of the balance of convenience on an application for a contested adjournment and did not involve the present issue. There is merit in the submission by counsel for ASIC that it is hardly correct to say that an officer of a company that is in external administration has any right to silence concerning the affairs of the company. On the contrary, the officer is bound by statute, when called upon, to provide information. That has been the case for a very long time ( Rees v Kratzmann [1965] HCA 49 ; 114 CLR 63; Evans v Wainter 145 FCR per Lander J at [44] [82]; per French J in Highstoke Pty Ltd v Hayes Knight GTO Pty Ltd [2007] FCA 13 at [46] [78]). Ainsworth [1992] HCA 10 ; 175 CLR 564 concerned publication of a damning report. The same can be said of Testro Bros Pty Ltd v Tait [1963] HCA 29 ; (1963) 109 CLR 353 that was effectively overruled by Annetts v McCann (per Mason CJ, Dean and McHugh JJ 170 CLR at 598) and Ainsworth (per Mason CJ, Dawson, Toohey and Gaudron JJ 175 CLR at 576 577). In my opinion, the initiation of the exercise of a statutory power of an investigatory nature will not normally 'destroy, defeat or prejudice' (to use the words from Annetts v McCann [1990] HCA 57 ; 170 CLR 596) or 'imperil' (to use Meagher J's word) any relevant right or interest such as to require notice to be given to the object prior to exercise of the power. In any event, where, as here, the exercise of a power is anterior to that which has a direct effect upon the party, there is no such requirement.


case_text: second argument was that if ASIC had notified the Administrators prior to the decision, so giving them the opportunity of making submissions in opposition, there is no reason to suppose that would have produced a different outcome ( Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141). It was submitted that ASIC had received significant submissions from or on behalf of the Administrators in relation to the original investigation and in relation to the release of transcripts which said all that could be said, as was revealed by the nature of the response made when the authorisation was known. Counsel for ASIC submitted that the evidence suggested that ASIC took those considerations into account. Some of the difficulties of applying the Stead principle were discussed by McHugh, Gummow, Callinan and Heydon JJ in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1 at [34] . In the present case, the question was whether particular persons should be appointed as eligible applicants. I can see no evidence that that topic was addressed in the submissions made on behalf of the Administrators prior to the decision being made.


case_text: the sake of completeness I should deal with two arguments raised on behalf of ASIC, each of which I would reject if I had been of a different view concerning the duty to accord natural justice. The first was that the decision here was a step or stage in a process, the end result of which would entail procedural fairness ( Ainsworth per Mason CJ, Dawson, Toohey and Gaudron JJ 175 CLR at 578; South Australia v O'Shea [1987] HCA 39 ; (1987) 163 CLR 378 per Mason CJ at 389). It was argued that the position was not dissimilar to the lack of any requirement to afford a hearing prior to the commencement of a prosecution of a like proceeding ( Barton v The Queen [1980] HCA 48 ; (1980) 147 CLR 75 at 95; Cornall v AB (A Solicitor) [1995] 1 VR 372 at 396 397; Commissioner of Police v Reid 16 NSWLR at 461; Australian Securities and Investments Commission v Plymin (No 3) [2002] VSC 358 ; (2002) 170 FLR 128 at 135 136). In the first place, it is doubtful whether there is a single decision making process of the kind referred to in the present circumstances. The decision by ASIC in relation to authorisation involves different questions and different issues than would a decision to issue a summons by the Court or the conduct of the proceeding itself (cf McHugh J in Johns v Australian Securities Commission 178 CLR at 473 474 and see Re Excel 52 FCR at 83 84 and 86). It is difficult to see how failure to accord natural justice in relation to the decision in question could be cured by later events. In the second place, the examination procedure is not designed to accord natural justice to a party in relation to any allegations made, directly or indirectly, against the examinee. The process is inquisitorial rather than adversarial. There is no case put against the examinee or any case in reply. As Windeyer J said in Rees v Kratzmann (114 CLR at 80): 'The honest conduct of the affairs of companies is a matter of great public concern to-day. If the legislature thinks that in this field the public interest overcomes some of the common law's traditional consideration for the individual, then effect must be given to the statute which embodies this policy.' (See also Hamilton v Oades [1989] HCA 21 ; (1989) 166 CLR 486.) The fact that the Court maintains considerable control over the examination does not change the information gathering nature of the function being performed. The analogy with the institution of Court proceedings is not apt.


case_title: Barton v The Queen [1980] HCA 48 ; (1980) 147 CLR 75


case_text: reasons in Rio Tinto 151 FCR from [64] [68] make clear that it was a special case, depending upon the form of particulars given by the Commissioner. In my opinion, an argumentative submission that is responsive to an integer of the applicant's case and defensive of the respondent's position would not normally give rise to the type of inconsistency referred to by the High Court in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 and applied on the facts of Rio Tinto [2006] FCAFC 86 ; 151 FCR 341 (cf Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101). I could see no special feature of the present case to displace that position.


case_text: decision of the New South Wales Court of Appeal in Commissioner of Police v Reid (1989) 16 NSWLR 453, cited by counsel for ASIC, is, at least, consistent with his submission and, on one view, directly supports it. Meagher JA (with whom Clarke JA agreed) held (at 461FG) that the ministerial step of obtaining leave from a judge to prosecute for perjury before any decision to prosecute is taken ' ... of itself does nothing, and certainly does not imperil any relevant right or interest.' I do not read the circumstance that the decision to prosecute does not require natural justice to be afforded as detracting from the more general proposition. For the sake of completeness I should deal with two arguments raised on behalf of ASIC, each of which I would reject if I had been of a different view concerning the duty to accord natural justice. The first was that the decision here was a step or stage in a process, the end result of which would entail procedural fairness ( Ainsworth per Mason CJ, Dawson, Toohey and Gaudron JJ 175 CLR at 578; South Australia v O'Shea [1987] HCA 39 ; (1987) 163 CLR 378 per Mason CJ at 389). It was argued that the position was not dissimilar to the lack of any requirement to afford a hearing prior to the commencement of a prosecution of a like proceeding ( Barton v The Queen [1980] HCA 48 ; (1980) 147 CLR 75 at 95; Cornall v AB (A Solicitor) [1995] 1 VR 372 at 396 397; Commissioner of Police v Reid 16 NSWLR at 461; Australian Securities and Investments Commission v Plymin (No 3) [2002] VSC 358 ; (2002) 170 FLR 128 at 135 136). In the first place, it is doubtful whether there is a single decision making process of the kind referred to in the present circumstances. The decision by ASIC in relation to authorisation involves different questions and different issues than would a decision to issue a summons by the Court or the conduct of the proceeding itself (cf McHugh J in Johns v Australian Securities Commission 178 CLR at 473 474 and see Re Excel 52 FCR at 83 84 and 86). It is difficult to see how failure to accord natural justice in relation to the decision in question could be cured by later events. In the second place, the examination procedure is not designed to accord natural justice to a party in relation to any allegations made, directly or indirectly, against the examinee. The process is inquisitorial rather than adversarial. There is no case put against the examinee or any case in reply. As Windeyer J said in Rees v Kratzmann (114 CLR at 80): 'The honest conduct of the affairs of companies is a matter of great public concern to-day. If the legislature thinks that in this field the public interest overcomes some of the common law's traditional consideration for the individual, then effect must be given to the statute which embodies this policy.' (See also Hamilton v Oades [1989] HCA 21 ; (1989) 166 CLR 486.) The fact that the Court maintains considerable control over the examination does not change the information gathering nature of the function being performed. The analogy with the institution of Court proceedings is not apt.


case_text: the hearing an issue arose as to whether the nature of certain submissions made by counsel for ASIC waived legal professional privilege in certain parts of the Spear Report and the incorporated report based upon the reasoning of the Full Court in Commissioner of Taxation v Rio Tinto [2006] FCAFC 86 ; (2006) 151 FCR 341. After hearing argument on behalf of the Administrators I said: 'I am not persuaded that a defensive argument or submission deploys the substance of legal advice in the way the authorities require ...' Further argument was then presented by counsel and, after further reflection, I adhered to my opinion and rejected the application for access to the whole of the documents in question. Attention was particularly drawn to pars 74 80 of ASIC's written submissions. The submissions in question were an answer to the argument that par 23 of the Gray Memorandum was irrational. It is sufficient to set out par 75 and par 80 to understand the argument: '75. In such a complex case, Mr Gray, in his memorandum to Mr Taylor, was entirely reasonably adverting to the possibility that ASIC's own conclusion as to prospects was not infallible or the only view which could be said to be reasonably or even possibly open, especially in circumstances where ASIC had only examined four persons and the applicants had signalled an intention to examine additional persons. ... 80. The most that can be said of the material is that it indicated that there was insufficient evidence for ASIC to take action. ASIC is a public body with has limited resources to take legal action. As a public prosecutor, ASIC needs to exercise caution before taking steps against private persons. It does not follow from there being insufficient prospects of success for ASIC to take action that there are insufficient prospects of success for a private person to take action. For the same reason, it did not follow from this result of the investigation that the examinations would be futile.' It was submitted that ASIC's reference to 'complex' connoted some form of assessment of the merits which could not be tested without having access to all of the underlying material. It followed that it would be unfair not to have such access to counter that which was put forward on behalf of ASIC. Rio Tinto [2006] FCAFC 86 ; 151 FCR 341 concerned an interlocutory discovery issue. The common law was applied and the test was expressed as follows (151 FCR at [61]): 'Both before and after Mann , the governing principle required a fact-based inquiry as to whether, in effect, the privilege holder had directly or indirectly put the contents of an otherwise privileged communication in issue in litigation, either in making a claim or by way of defence. In DSE (at [58]) Allsop J put the matter somewhat more descriptively, saying waiver arises when: "the party entitled to the privilege makes an assertion (express or implied), or brings a case, which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the act and the maintenance of the confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication".' (emphasis in original) Counsel for ASIC submitted that as the point here arose at the hearing, it was governed by s 122 of the Evidence Act rather than the common law. It was not necessary to decide that question as I was not persuaded that the application should succeed on the basis put forward. The reasons in Rio Tinto 151 FCR from [64] [68] make clear that it was a special case, depending upon the form of particulars given by the Commissioner. In my opinion, an argumentative submission that is responsive to an integer of the applicant's case and defensive of the respondent's position would not normally give rise to the type of inconsistency referred to by the High Court in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 and applied on the facts of Rio Tinto [2006] FCAFC 86 ; 151 FCR 341 (cf Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101). I could see no special feature of the present case to displace that position.


case_title: Cornall v AB (A Solicitor) [1995] 1 VR 372


case_text: private examination of persons pursuant to Div 2 of Pt 3 of the ASIC Act in aid of an investigation by ASIC pursuant to Div 1 of Pt 3 has a different history, role and purpose from examinations pursuant to Div 1 of Pt 5.9 of the Corporations Act . The latter are a long standing feature of insolvency administration, the history, nature and purpose of which have been analysed in many cases most recently by Lander J in Evans v Wainter Pty Limited [2005] FCAFC 114 ; (2005) 145 FCR 176 and French J in Highstoke Pty Ltd v Hayes Knight GTO Pty Ltd [2007] FCA 13 and need not be repeated. Counsel for Macquarie also put a variation upon those themes. Reliance was placed upon some statements made by Lander J in Evans 145 FCR at 216 217 to erect a mandatory consideration, namely, that ASIC identify what was described as the 'net' benefit to a corporation of the proposed examinations, thus involving a calculus of benefits and detriments leading to a net benefit. The analysis by Lander J in the passage referred to above is, no doubt, valuable. It is not, however, a statute. It does not set out to lay down mandatory considerations for ASIC to consider before granting authorisation. It provides guidance as to what would be an abuse of process or an improper purpose. The statement that ASIC was only entitled to authorise a person who was an eligible applicant if that person's purpose in seeking an examination summons is for the benefit of the corporation, its contributories or its creditors must be understood in that context, ie, the purpose should not be a collateral purpose. There is no suggestion of any collateral purpose in the present case. Furthermore, Lander J does not hold that it is mandatory for ASIC to expressly weigh up all potential benefits and detriments to find a 'net' benefit before granting authorisation. The argument is an attempt to incorporate mandatory provisions into an unconstrained statutory discretion. The Administrators did not receive prior notice of the intention to make the decision in question and, if they were entitled to natural justice or procedural fairness, it would follow that the decision was invalid by reason of that failure. It is convenient to deal with the argument that the statute impliedly required natural justice be accorded to the Administrators prior to considering the argument that the dealings between ASIC and the Administrators led to a legitimate expectation on the part of the Administrators that natural justice would be accorded to them. Counsel for the Administrators was unable to refer to any like case in which the point has been taken. Even more striking is that the point does not appear to have been taken in relation to the issue of a summons for examination, a decision with direct and immediate impact upon the examinee which has often been challenged. In my opinion, the argument does not withstand analysis, although it has some initial attraction. It is also submitted that the common law right to maintain silence will be encroached upon. It is not clear to me that the so called common law right to silence is a right or interest in the sense outlined in Annetts v McCann [1990] HCA 57 ; 170 CLR 596 . The only authority that was cited to support that proposition, apart from the reference in the passage from the reasons of Dawson J in Johns v Australian Securities Commission 178 CLR at 437, was that of Branson J in Re Cortaus Ltd (in liq); Sheahan v Joye (No 2) (1996) 20 ACSR 576 at 578. That was an examination of the balance of convenience on an application for a contested adjournment and did not involve the present issue. There is merit in the submission by counsel for ASIC that it is hardly correct to say that an officer of a company that is in external administration has any right to silence concerning the affairs of the company. On the contrary, the officer is bound by statute, when called upon, to provide information. That has been the case for a very long time ( Rees v Kratzmann [1965] HCA 49 ; 114 CLR 63; Evans v Wainter 145 FCR per Lander J at [44] [82]; per French J in Highstoke Pty Ltd v Hayes Knight GTO Pty Ltd [2007] FCA 13 at [46] [78]).


case_title: Hare v Gladwin (1988) 82 ALR 307

case_text: for ASIC submitted that the decision of Sheppard J in Hare v Gladwin (1988) 82 ALR 307 is in point and should be followed. Section 316 of the Commonwealth Electoral Act 1918 (Cth) provided, inter alia, that an authorised officer of the Electoral Commission could issue a notice requiring the production of documents where the officer has reasonable grounds to believe that a person is capable of providing documents relating to a possible contravention of certain parts of the Act. Sheppard J held that the officer was not obliged to give a recipient an opportunity of making submissions as to why the notice should not be served or why it should be limited in a particular respect, nor to foreshadow to the recipient the nature of her belief in relation to a possible contravention of the Act. His Honour said (82 ALR at 330): 'She was acting in an investigatory capacity only. Nothing that she could do could affect any right or interest which he has or expose him, except by the operation of the Act itself, to conviction for any offence or the risk of such a conviction. In the light of the decision in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550; 62 ALR 321, it is probably true to say that few statutes will be construed in such a manner as to deny to persons affected by action taken under them procedural fairness. The question in each case is what does procedural fairness require. In my opinion, it did not require Mrs Gladwin to give Mr Hare any opportunity of making any submissions to her at all about whether the notice should be issued or what the form of it ought to be.' That case is not on all fours with this case. On the one hand, it is a stronger case. The effect upon the recipient of the notice was direct and immediate rather than indirect. The right to maintain the privacy of documents was directly affected. On the other hand, there was no reference to damage to reputation, as public disclosure was apparently not involved. However, on the whole, it tends to support ASIC's position.


case_text: private examination of persons pursuant to Div 2 of Pt 3 of the ASIC Act in aid of an investigation by ASIC pursuant to Div 1 of Pt 3 has a different history, role and purpose from examinations pursuant to Div 1 of Pt 5.9 of the Corporations Act . The latter are a long standing feature of insolvency administration, the history, nature and purpose of which have been analysed in many cases most recently by Lander J in Evans v Wainter Pty Limited [2005] FCAFC 114 ; (2005) 145 FCR 176 and French J in Highstoke Pty Ltd v Hayes Knight GTO Pty Ltd [2007] FCA 13 and need not be repeated. It is also submitted that the common law right to maintain silence will be encroached upon. It is not clear to me that the so called common law right to silence is a right or interest in the sense outlined in Annetts v McCann [1990] HCA 57 ; 170 CLR 596 . The only authority that was cited to support that proposition, apart from the reference in the passage from the reasons of Dawson J in Johns v Australian Securities Commission 178 CLR at 437, was that of Branson J in Re Cortaus Ltd (in liq); Sheahan v Joye (No 2) (1996) 20 ACSR 576 at 578. That was an examination of the balance of convenience on an application for a contested adjournment and did not involve the present issue. There is merit in the submission by counsel for ASIC that it is hardly correct to say that an officer of a company that is in external administration has any right to silence concerning the affairs of the company. On the contrary, the officer is bound by statute, when called upon, to provide information. That has been the case for a very long time ( Rees v Kratzmann [1965] HCA 49 ; 114 CLR 63; Evans v Wainter 145 FCR per Lander J at [44] [82]; per French J in Highstoke Pty Ltd v Hayes Knight GTO Pty Ltd [2007] FCA 13 at [46] [78]).


case_text: example, relied upon by the Administrators, was the decision of the High Court in Johns v Australian Securities Commission [1993] HCA 56 ; (1993) 178 CLR 408. Dawson J (178 CLR at 437) expressly referred to personal reputation as being a sufficient interest to require observance of the rules of natural justice concerning a decision by the predecessor of ASIC to release confidential transcripts to a Royal Commission and consent to the use of them in public hearings. McHugh J used words to the same effect (178 CLR at 470 471) and Brennan J was impliedly to the same effect (178 CLR at 430). Gaudron J agreed with Brennan J. Dawson J referred to another factor in the following words (178 CLR at 437): '... the publication of the information provided by the appellant under compulsion was a further encroachment upon the appellant's common law right to maintain his silence upon the matters which were the subject of investigation by the A.S.C.' It is submitted on behalf of the Administrators that the conduct of the examinations that are proposed is likely to prejudice their private and commercial and business reputation. It is a reasonable assumption that the examinations will be held in public and that the topics to be explored will involve airing allegations which would be detrimental to the reputation of the Administrators. It is also likely that there will be some media publicity as to those allegations. It is also submitted that the common law right to maintain silence will be encroached upon. It is not clear to me that the so called common law right to silence is a right or interest in the sense outlined in Annetts v McCann [1990] HCA 57 ; 170 CLR 596 . The only authority that was cited to support that proposition, apart from the reference in the passage from the reasons of Dawson J in Johns v Australian Securities Commission 178 CLR at 437, was that of Branson J in Re Cortaus Ltd (in liq); Sheahan v Joye (No 2) (1996) 20 ACSR 576 at 578. That was an examination of the balance of convenience on an application for a contested adjournment and did not involve the present issue. There is merit in the submission by counsel for ASIC that it is hardly correct to say that an officer of a company that is in external administration has any right to silence concerning the affairs of the company. On the contrary, the officer is bound by statute, when called upon, to provide information. That has been the case for a very long time ( Rees v Kratzmann [1965] HCA 49 ; 114 CLR 63; Evans v Wainter 145 FCR per Lander J at [44] [82]; per French J in Highstoke Pty Ltd v Hayes Knight GTO Pty Ltd [2007] FCA 13 at [46] [78]). Johns v Australian Securities Commission [1993] HCA 56 ; 178 CLR 408 deals with a different statutory setting. The issue of substance before the High Court concerned the validity of decisions on the part of the Australian Securities Commission (ASC) to release transcripts of private examinations of Johns by the ASC to a Royal Commission in circumstances which allowed the information released to be published generally (see 178 CLR at 421). The Australian Securities Commission Act 1989 (Cth) provided for the examination of persons on oath as ancillary to an investigation by the ASC. Such an examination was to take place in private (s 19). As Brennan J said, in delivering the principal judgment, (178 CLR at 422): 'The Act thus maintains the traditional privacy of examinations into the affairs of a company. Privacy has been observed in conducting such examinations out of consideration for the commercial reputation of the company and the protection of witnesses.' Of course his Honour was not speaking of examinations pursuant to Pt 5 of the Corporations Act in relation to which public examination is now the norm. His Honour was of the view that confidentiality of the information contained in the transcripts of examination was amenable to protection by Johns by injunction where its use or disclosure was not authorised by statute (178 CLR at 427). That being the case, it was not a long step to hold that the statute implicitly provided that Johns was entitled to prior notice of any decision to affect his statutory right to confidentiality in the information in particular existing transcripts by authorising the release of those transcripts on a basis that would destroy that confidentiality. For the sake of completeness I should deal with two arguments raised on behalf of ASIC, each of which I would reject if I had been of a different view concerning the duty to accord natural justice. The first was that the decision here was a step or stage in a process, the end result of which would entail procedural fairness ( Ainsworth per Mason CJ, Dawson, Toohey and Gaudron JJ 175 CLR at 578; South Australia v O'Shea [1987] HCA 39 ; (1987) 163 CLR 378 per Mason CJ at 389). It was argued that the position was not dissimilar to the lack of any requirement to afford a hearing prior to the commencement of a prosecution of a like proceeding ( Barton v The Queen [1980] HCA 48 ; (1980) 147 CLR 75 at 95; Cornall v AB (A Solicitor) [1995] 1 VR 372 at 396 397; Commissioner of Police v Reid 16 NSWLR at 461; Australian Securities and Investments Commission v Plymin (No 3) [2002] VSC 358 ; (2002) 170 FLR 128 at 135 136). In the first place, it is doubtful whether there is a single decision making process of the kind referred to in the present circumstances. The decision by ASIC in relation to authorisation involves different questions and different issues than would a decision to issue a summons by the Court or the conduct of the proceeding itself (cf McHugh J in Johns v Australian Securities Commission 178 CLR at 473 474 and see Re Excel 52 FCR at 83 84 and 86). It is difficult to see how failure to accord natural justice in relation to the decision in question could be cured by later events. In the second place, the examination procedure is not designed to accord natural justice to a party in relation to any allegations made, directly or indirectly, against the examinee. The process is inquisitorial rather than adversarial. There is no case put against the examinee or any case in reply. As Windeyer J said in Rees v Kratzmann (114 CLR at 80): 'The honest conduct of the affairs of companies is a matter of great public concern to-day. If the legislature thinks that in this field the public interest overcomes some of the common law's traditional consideration for the individual, then effect must be given to the statute which embodies this policy.' (See also Hamilton v Oades [1989] HCA 21 ; (1989) 166 CLR 486.) The fact that the Court maintains considerable control over the examination does not change the information gathering nature of the function being performed. The analogy with the institution of Court proceedings is not apt.


case_text: for ASIC submitted that the decision of Sheppard J in Hare v Gladwin (1988) 82 ALR 307 is in point and should be followed. Section 316 of the Commonwealth Electoral Act 1918 (Cth) provided, inter alia, that an authorised officer of the Electoral Commission could issue a notice requiring the production of documents where the officer has reasonable grounds to believe that a person is capable of providing documents relating to a possible contravention of certain parts of the Act. Sheppard J held that the officer was not obliged to give a recipient an opportunity of making submissions as to why the notice should not be served or why it should be limited in a particular respect, nor to foreshadow to the recipient the nature of her belief in relation to a possible contravention of the Act. His Honour said (82 ALR at 330): 'She was acting in an investigatory capacity only. Nothing that she could do could affect any right or interest which he has or expose him, except by the operation of the Act itself, to conviction for any offence or the risk of such a conviction. In the light of the decision in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550; 62 ALR 321, it is probably true to say that few statutes will be construed in such a manner as to deny to persons affected by action taken under them procedural fairness. The question in each case is what does procedural fairness require. In my opinion, it did not require Mrs Gladwin to give Mr Hare any opportunity of making any submissions to her at all about whether the notice should be issued or what the form of it ought to be.' That case is not on all fours with this case. On the one hand, it is a stronger case. The effect upon the recipient of the notice was direct and immediate rather than indirect. The right to maintain the privacy of documents was directly affected. On the other hand, there was no reference to damage to reputation, as public disclosure was apparently not involved. However, on the whole, it tends to support ASIC's position. Counsel for ASIC pointed out that a similar question would arise in relation to the issue of a subpoena to produce documents or give evidence in a court established by statute. The same question would apply to the issue of a summons to give evidence or produce documents to a Royal Commission or other administrative body with compulsory powers, eg, the Administrative Appeals Tribunal. There is a plethora of provisions that do not involve a hearing, but result in the compulsory acquisition of information and documents that can be used publicly later by the regulatory authority concerned, eg, notices pursuant to s 155 of the Trade Practices Act 1974 (Cth) and s 263 and s 264 of the Income Tax Assessment Act 1936 (Cth), search warrants pursuant to Pt 1AA Div 2 of the Crimes Act 1914 (Cth) and telephone interception warrants pursuant to the Telecommunications (Interception) and Listening Device Amendment Act 1997 (Cth). Counsel for the Administrators was not able to cite any authority that has imposed a duty to hear any person before exercising any such powers, notwithstanding the expansion of the application of natural justice since Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550. I have already noted that no authority was cited to suggest that either the authorisation of an eligible applicant or the issue of a summons for examination has previously been challenged on this basis.


case_text: seems to me that par 15 and par 16 state the outcome with sufficient clarity. The use which is sought to be made of par [23] is a good example of the tendency to parse and analyse administrative reports with a fine toothcomb contrary to Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259. A fair reading of the three paragraphs in question is that the complexity of the matter was such that the fact that ASIC had come to a particular conclusion did not preclude a different conclusion being arrived at by others, particularly with the benefit of the further examinations sought. In my opinion, the decision maker was not obliged to seek any further information. It needs to be borne steadily in mind that an unconstrained discretion was being exercised. There is a further difficulty with this argument. If the decision maker had drilled down to the Spear Report and the incorporated report it would have been apparent that the decision made by ASIC was based upon a number of debateable matters requiring judgment and that, indeed, the possibility of various forms of civil action were flagged but not precluded. The second way in which par 23 was attacked was that the reasoning was perverse and therefore unreasonable in the Wednesbury sense. It was said that complexity of itself provides no sensible basis for departing from the prior conclusion by ASIC itself. A matter could be complex but the outcome clear. The way in which I have held that par 23 should be understood was not unreasonable in any sense. There is, therefore, no need to explore the application of the Wednesbury principle in this context.


case_text: attack was twofold. In the first place, it was said that the decision maker was obliged to seek more information to clarify par 23 ( Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 and other authorities which have applied Prasad ). It was suggested that the decision maker would need to drill down to ascertain upon what basis the decisions had been made and ascertain how clearly or strongly the conclusion had been reached and so on.


case_text: argument ignores the difference between the two stages of the process and assumes that it was mandatory for ASIC to form a view that successful litigation on behalf of Allstate would ensue. In the first place, there is no mandatory consideration of that kind in the statute. Secondly, it mistakes the nature of examinations. They are for the purpose of information gathering. The potential result would only be known at the conclusion of that exercise rather than at the beginning. Thirdly, it assumes that the only potential causes of action were those expressly dealt with by ASIC and that the only examinations proposed were those of the listed persons. That was not the basis of the application and was not the basis of the approval. Fourthly, it ignores the more general purposes of public examination of those connected with insolvent companies ( Rees v Kratzmann [1965] HCA 49 ; (1965) 114 CLR 63). It is also submitted that the common law right to maintain silence will be encroached upon. It is not clear to me that the so called common law right to silence is a right or interest in the sense outlined in Annetts v McCann [1990] HCA 57 ; 170 CLR 596 . The only authority that was cited to support that proposition, apart from the reference in the passage from the reasons of Dawson J in Johns v Australian Securities Commission 178 CLR at 437, was that of Branson J in Re Cortaus Ltd (in liq); Sheahan v Joye (No 2) (1996) 20 ACSR 576 at 578. That was an examination of the balance of convenience on an application for a contested adjournment and did not involve the present issue. There is merit in the submission by counsel for ASIC that it is hardly correct to say that an officer of a company that is in external administration has any right to silence concerning the affairs of the company. On the contrary, the officer is bound by statute, when called upon, to provide information. That has been the case for a very long time ( Rees v Kratzmann [1965] HCA 49 ; 114 CLR 63; Evans v Wainter 145 FCR per Lander J at [44] [82]; per French J in Highstoke Pty Ltd v Hayes Knight GTO Pty Ltd [2007] FCA 13 at [46] [78]). For the sake of completeness I should deal with two arguments raised on behalf of ASIC, each of which I would reject if I had been of a different view concerning the duty to accord natural justice. The first was that the decision here was a step or stage in a process, the end result of which would entail procedural fairness ( Ainsworth per Mason CJ, Dawson, Toohey and Gaudron JJ 175 CLR at 578; South Australia v O'Shea [1987] HCA 39 ; (1987) 163 CLR 378 per Mason CJ at 389). It was argued that the position was not dissimilar to the lack of any requirement to afford a hearing prior to the commencement of a prosecution of a like proceeding ( Barton v The Queen [1980] HCA 48 ; (1980) 147 CLR 75 at 95; Cornall v AB (A Solicitor) [1995] 1 VR 372 at 396 397; Commissioner of Police v Reid 16 NSWLR at 461; Australian Securities and Investments Commission v Plymin (No 3) [2002] VSC 358 ; (2002) 170 FLR 128 at 135 136). In the first place, it is doubtful whether there is a single decision making process of the kind referred to in the present circumstances. The decision by ASIC in relation to authorisation involves different questions and different issues than would a decision to issue a summons by the Court or the conduct of the proceeding itself (cf McHugh J in Johns v Australian Securities Commission 178 CLR at 473 474 and see Re Excel 52 FCR at 83 84 and 86). It is difficult to see how failure to accord natural justice in relation to the decision in question could be cured by later events. In the second place, the examination procedure is not designed to accord natural justice to a party in relation to any allegations made, directly or indirectly, against the examinee. The process is inquisitorial rather than adversarial. There is no case put against the examinee or any case in reply. As Windeyer J said in Rees v Kratzmann (114 CLR at 80): 'The honest conduct of the affairs of companies is a matter of great public concern to-day. If the legislature thinks that in this field the public interest overcomes some of the common law's traditional consideration for the individual, then effect must be given to the statute which embodies this policy.' (See also Hamilton v Oades [1989] HCA 21 ; (1989) 166 CLR 486.) The fact that the Court maintains considerable control over the examination does not change the information gathering nature of the function being performed. The analogy with the institution of Court proceedings is not apt.


case_text: is also submitted that the common law right to maintain silence will be encroached upon. It is not clear to me that the so called common law right to silence is a right or interest in the sense outlined in Annetts v McCann [1990] HCA 57 ; 170 CLR 596 . The only authority that was cited to support that proposition, apart from the reference in the passage from the reasons of Dawson J in Johns v Australian Securities Commission 178 CLR at 437, was that of Branson J in Re Cortaus Ltd (in liq); Sheahan v Joye (No 2) (1996) 20 ACSR 576 at 578. That was an examination of the balance of convenience on an application for a contested adjournment and did not involve the present issue. There is merit in the submission by counsel for ASIC that it is hardly correct to say that an officer of a company that is in external administration has any right to silence concerning the affairs of the company. On the contrary, the officer is bound by statute, when called upon, to provide information. That has been the case for a very long time ( Rees v Kratzmann [1965] HCA 49 ; 114 CLR 63; Evans v Wainter 145 FCR per Lander J at [44] [82]; per French J in Highstoke Pty Ltd v Hayes Knight GTO Pty Ltd [2007] FCA 13 at [46] [78]).