Case: Huddart Parker &amp; Co Pty Ltd v Moorehead [1909] HCA 36 ; (1909) 8 CLR 330
Outcome: cited
The limits of the judicial power of the Commonwealth are not easily defined. At its heart is "the power which any sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property": Huddart Parker &amp; Co Pty Ltd v Moorehead [1909] HCA 36 ; (1909) 8 CLR 330 at 357 (Griffith CJ). But as was pointed out in R v Davison [1954] HCA 46 ; (1954) 90 CLR 353, the elements of controversy between subjects and the determination of existing rights and liabilities were "entirely lacking from many proceedings falling within the jurisdiction of various courts of justice in English law" (per Dixon CJ and McTiernan J at 368). Examples given included directions as to the administration of trusts, orders relating to the maintenance and guardianship of infants and declarations of legitimacy. Their Honours also referred to incidental administrative functions such as the issue of warrants of execution and said (at 368): 'But to say that a thing may be done in the course of the exercise of judicial power is not to say that it may be done without the exercise of judicial power.' Their Honours recognised that some functions are treated as judicial because they have long been so treated (at 369): 'The truth is that the ascertainment of existing rights by the judicial determination of issues of fact or law falls exclusively within judicial power so that the Parliament cannot confide the function to any person or body but a court constituted under ss 71 and 72 of the Constitution and this may be true also of some duties or powers hitherto invariably discharged by courts under our system of jurisprudence but not exactly of the foregoing description.' 97 When a regulatory body or authority such as ASIC or the Australian Competition and Consumer Commission or the Commissioner of Taxation is given such a power it is a power to investigate not to decide in the sense that a court decides when it gives judgment upon a matter before it: Huddart Parker &amp; Co Pty Ltd v Moorehead at 358 (Griffiths CJ), 380 (O'Connor J), 384 (Isaacs J), 418 (Higgins J); Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission [1982] HCA 65 ; (1982) 152 CLR 460. The latter case concerned s 155 of the Trade Practices Act conferring power on the Chairman of the Trade Practices Commission to orally examine persons or require production of documents relevant to possible contraventions of the Act. The Court held that s 155 did not purport to confer judicial power on the Commission. Mason J made some observations relevant to the distinction between the exercise of an investigative power which may lead to subsequent judicial proceedings but nevertheless remains administrative and the exercise of an administrative power as an incident of judicial power. He said (at 471 - 472): 'The absence in s 155 of any power to decide or determine a dispute between parties the central element in the exercise of judicial power might be thought to be an overwhelming answer to the argument that there is an attempt to confer judicial power on the Commission. However, it is suggested that if the Commission requires information to be given for the purpose of obtaining evidence in a matter before the Court then it is exercising judicial power. According to Holmes J in Prentis v Atlantic Coastline [(1908) 211 US 210 at p 227], "The nature of the final act determines the nature of the previous inquiry". But this does not mean that because the determination ultimately made by the Federal Court in proceedings in respect of a contravention of the Act is an exercise of judicial power the issue and service of the notices is itself such an exercise. Holmes J was merely saying that the character of the order or final decision made by a tribunal will determine the character of the inquiry which precedes its decision, so that if its determination is a judicial order then its inquiry will constitute an exercise of judicial power. R v Davison [(1954) [1954] HCA 46 ; 90 CLR 353] was just such a case. This is not to say that it is legitimate to characterize the nature of the power exercised by the Commission under s 155 by reference to the judicial power which the Court exercises when it hears proceedings for a penalty under the Act. What the Commission does will produce information which may be presented in evidence by a party in proceedings in respect of a contravention under the Act, but this is no basis for saying that there is an exercise of judicial power on the part of the Commission. The exercise of a power to compel the provision of information is not inherently such an exercise. It may constitute an element in the exercise of judicial power when the power is part of the proceedings of the court, its object being to aid the court or the parties to obtain and present evidence in those proceedings. Then the exercise of the power by the court or the parties in proceedings in the court is for the purpose of enabling the court to hear and determine the lis and is, accordingly, incidental to, if not an element in, the exercise of judicial power.' See also Kluver and Woellner , Powers of Investigation in Revenue, Companies and Trade Practices Law (Butterworths, 1983, [102] - [103]) 108 The above passage states no new principle and indeed refers generally in a footnote to the discussion by Dixon CJ and McTiernan J in R v Davison. But to say that the courts have historically exercised investigative functions does not mean that all investigative functions conferred on a court, absent relevant historical antecedents or analogues, are to be regarded as judicial if not otherwise incidental to the exercise of judicial power. Without some limitation of that kind investigative obligations may be imposed by statute upon courts exercising federal jurisdiction on any subject within the legislative competence of the Commonwealth Parliament. 109 The question in this case is where there is any historical basis for characterising the examination power as now propounded as judicial in character. Its purported extension to corporations which are not being wound up or otherwise subject to judicial processes is an event of recent and certainly post-federation history. Nor can its characterisation as judicial be treated as analogous to such processes as preliminary discovery or bills of discovery in equity which have, in any event, a narrower field of operation than that which is proposed for s 596A. In so saying it is necessary to bear in mind that the validity of s 596A in its general application to solvent corporations not under any form of administration or judicial process is not to be judged by reference to this particular application in respect of such a corporation. The examination power cannot be justified on the basis that there is a damages claim pending against the company being examined. The construction of s 596A relied upon and necessary to support the issue of the examination summons in this case does not depend upon the existence of the damages claim but upon the status of Hayes Knight as a corporation. 110 In my opinion if the construction of s 596A for which Highstoke contends is the correct construction, then s 596A purports to confer on the Court a power which is not capable of characterisation as judicial and which, in its present application, is not incidental to the exercise of judicial power. To that extent, s 596A would exceed the legislative power of the Commonwealth. It may be that, by virtue of s 15A of the Acts Interpretation Act s 596A can be read down to yield the construction which, in my opinion, is in any event the correct one. The outcome is the same. The summons must be discharged. 111 The disposition of the Judicial Review Proceedings is effectively governed by the conclusions in respect of the Examination Proceedings. It was at the very least a mandatory relevant consideration to be taken into account by the ASIC delegate, if not a factor defining the limits of the delegate's power that Hayes Knight was not under any form of external administration of the kind referred to in Ch 5 of the Act or otherwise amenable to the provisions of the Act. The stated purpose for which authorisation was sought was for an application which, on the proper construction of the relevant provisions, would be beyond the power of the Court. The authorisation decision should be quashed. There is no point in remitting the matter for reconsideration by ASIC as the quashing of the authorisation decision depends upon the proposition that, having regard to the purpose for which the application for authorisation was made, authorisation could not properly have been granted. 112 The question whether the issue of the summons was for an improper purpose because it was related to an examination not for the benefit of Hayes Knight falls away.