Re Allied Mills Industries Pty Limited v Trade Practices Commission NSW v G29 of 1979 Trade Practices [1981] FCA 14 (24 February 1981)

FEDERAL COURT OF AUSTRALIA

Re: ALLIED MILLS INDUSTRIES PTY. LIMITED
And: TRADE PRACTICES COMMISSION
N.S.W. V. G.29 of 1979
Trade practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Sheppard J.

CATCHWORDS

Trade practices - confidential information - breach of copyright - application for delivery up of documents handed over to Trade Practices Commission by former employee of cross-claimant and to restrain use by Commission of such documents in prosecution of cross-claimant for alleged breaches of s.45 of Trade Practices Act 1974 - claim brought by way of cross-claim in proceedings instituted by Commission pursuant to s.77 of the Act - jurisdiction of Federal Court to deal with cross-claim - purposes and objects of Trade Practices Act - public policy in rights of individuals to keep information confidential - resolution of competing public policies - extent to which power of Commission to obtain documents circumscribed by s.155 of the Act - whether any act which would otherwise be an infringement of the cross-claimant's copyright done for the services of the Commonwealth - the Constitution, s.75(iii); Federal Court of Australia Act 1976, s.32; Trade Practices Act 1974, ss.45, 77 and 155; Copyright Act 1968, s.183.

HEARING

SYDNEY
24:2:1981

ORDER

1. The documents referred to in Exhibit 10 in these proceedings be returned by the Cross Respondent to the Cross Claimant; otherwise the Cross Claim is dismissed.

2. The Cross Claimant pay the costs of the Cross Respondent including any costs reserved in the Cross Claim as agreed or taxed.

DECISION

The cross-claim in this matter is brought by leave granted the cross-claimant (hereinafter referred to as "Allied Mills") on 13 November, 1980. I refer to my reasons for granting that leave published on 10 November, 1980.

The cross-respondent is the Trade Practices Commission ("the Commission"). The cross-claim is brought in proceedings brought by the Commission against eight respondents of which Allied Mills is one. In the principal proceedings the Commission sues for penalties for breaches of s.45 of the Trade Practices Act 1974 ("the Act"). It also seeks injunctive relief. The proceedings were instituted pursuant to ss.77 and 80 of the Act.

By its cross-claim Allied Mills seeks orders restraining the Commission from making use of or disclosing information contained in certain documents. It also seeks an order that the Commission deliver up to Allied Mills the said documents and all copies thereof in its possession or power. Certain additional and consequential relief is also sought. The documents and the circumstances in which they came into the possession of the Commission are described in the evidence of Mr. Matthews, who was formerly employed by Allied Mills as its Victorian manager, and in the evidence of two officers of the Commission, Mr. Conlan and Mr. Jordan.

I propose to proceed by referring to that evidence and certain other evidence as well. I shall then refer to the causes of action upon which Allied Mills relies and to the Commission's defences thereto. It will then be necessary to say something of the jurisdiction of this Court to entertain the cross-claim. I shall then come to the questions of substance which must be resolved in order to determine what the outcome of the proceedings should be.

The documents which are in question, with one or two exceptions, are, firstly, those specified in paragraph 7 of the schedule to Mr. Conlan's affidavit of discovery sworn in the principal proceedings on 14 December, 1979. They secondly comprise some other documents which were not made the subject of discovery because the Commission considered, at the date the affidavit of discovery was sworn, that they were not relevant to any issue in the principal proceedings. The documents which were discovered were tendered in these proceedings and are comprised in exhibits B, E and 4. The documents not discovered were also tendered and are comprised in exhibit F. During the course of the proceedings counsel for the Commission made an open offer to settle Allied Mills' claim by the handing over of a number, but not all, of the documents comprised in exhibit F. In the alternative he made, in open court, a tender to Allied Mills of the same documents. I was not informed whether the tender was accepted. Certainly the open offer to settle the claim was rejected.

The document which is exhibit B is the document specified in item 7.1 of the schedule to Mr. Conlan's affidavit of discovery. At times it was referred to in the evidence as "the diary" or the "black diary". It is not in fact a diary but that is a convenient means by which to refer to it and I propose to refer to it as such accordingly.

The diary comprises a black loose leaf binder and a number of typed sheets of paper. According to Mr. Matthews, whose evidence was not challenged on any material point, it was typed on 9 October, 1976, at his home. Some of the typing was not satisfactory and some pages were retyped at later dates. Mr. Matthews was then still in the employ of Allied Mills. His employment terminated on 2 December, 1976, not 2 December, 1979, as stated in my reasons for judgment published on 10 November, 1980. The date 2 December, 1979, was transcribed from Mr. Huntington's affidavit therein referred to which stated the date of the termination of Mr. Matthews' employment incorrectly.

The binder and the sheets of paper inside it were at all material times the property of Allied Mills. They had been furnished to Mr. Matthews in the course of his employment, but it was not intended that he should make entries upon the pages which he in fact made. The sources of the typewritten material were entries contained in Mr. Matthews' handwriting in a pocket diary. The entries in the pocket diary came in turn from handwritten notes made by Mr. Matthews on various pieces of paper. Some of these were pages torn from a loose leaf desk diary which Mr. Matthews had in his office. Both the pocket diary and the desk diary were the property of Allied Mills and were also provided by it to Mr. Matthews for the purposes of his employment. It is clear, however, that he was not expressly or by implication required by Allied Mills to make any of the notes to which I have referred. Nevertheless, it may have been within the scope of his employment, bearing in mind that he was Victorian manager, to make the notes.

Except for a few pages from the desk diary all the sheets containing notes which were transcribed into the pocket diary have been destroyed. The pages from the desk diary are in the possession of the Commission and amongst the documents possession of which is sought to be recovered in these proceedings. They are referred to in item 7.55 of paragraph 7 of the schedule to Mr. Conlan's affidavit of discovery. The pocket diary has also been destroyed. The circumstances surrounding its destruction are described in Mr. Matthews' evidence. It is unnecessary to refer further to that evidence except to say that it was not challenged.

The Commission intends to call Mr. Matthews to give evidence in the main proceedings. He has made a statement of his evidence to the Commission's solicitor. This statement is substantially based upon the information which is in the black diary. A question arises whether, if an order were made restraining the use by the Commission of the entries in the black diary or their disclosure, it would be unable by its counsel to lead from Mr. Matthews the evidence he is intended to give. At this point it ought to be said that the principal purpose for which these proceedings are brought is to prevent the use by the Commission of material which it would wish to tender or otherwise make use of in conducting its case in the principal proceedings. There are other purposes in the bringing of the proceedings, but they are subsidiary to the principal purpose of hampering the Commission in leading, and Mr. Matthews in giving, evidence of events, claimed by the Commission to be relevant to issues involved in the principal proceedings, which transpired in 1976.

The remaining documents specified in paragraph 7 of the schedule to Mr. Conlan's affidavit are also said to be relevant to these issues. I do not find it necessary to refer to the detail of them. But it should be said that each of the documents is written on paper which was at one time the property of Allied Mills. In one or two cases there is a question of whether the documents were not given to Mr. Matthews by Allied Mills and thus became his property. In the majority of cases this is not the case. Many of the documents are documents which came into existence in the ordinary course of Allied Mills' business. In that respect they are to be distinguished from the entries made in the desk diary pages and the black diary. The documents referred to in paragraph 7 of the schedule to Mr. Conlan's affidavit of discovery, other than the black diary, are comprised in exhibit E. I have earlier referred generally to the nature of the documents in exhibit F. Exhibit 4 is a statement taken from Mr. Matthews by officers of the Commission.

Counsel for Allied Mills specified some documents in respect of which no claim was made that the documents were confidential documents. In all but two cases, the return of the documents was nevertheless claimed upon the basis that the documents were the property of Allied Mills. The two exceptions were the documents described in items 7.51 and 7.52 of the schedule to Mr. Conlan's affidavit of discovery, it being conceded that in respect of the first the claim to property had not been made out and in respect to the second that it had been produced pursuant to a notice served under s.155 of the Act. The documents in respect of which property, but not confidentiality, was claimed were those specified in items 7.2, 7.5, 7.6, 7.7, 7.16, 7.27, 7.30 and 7.50 of the schedule to Mr. Conlan's affidavit, together with a number of documents from exhibit F which I do not find necessary to specify. The return of the balance of the documents was claimed upon the basis both of property and confidentiality.

Mr. Duckett is the group chief accountant of Allied Mills. He was present in court when counsel for Allied Mills excepted from the claim for confidentiality the above mentioned documents. Mr. Duckett said that he believed, speaking on behalf of the company, that all of the documents which were included in the documents which he had seen, save for the ones excepted by counsel, had aspects of confidentiality about them. Prior to giving that evidence he had given the following evidence:

"In case any question arises as to the continuing confidentiality of those documents, I would like you to explain to his Honour how it is that 1976 documents concerning the topics you have been mentioning might retain confidentiality even up to the present day - in this industry? - - - - Your Honour, we are looking back now a relatively short period within this industry to the extent that the same competitors are basically within it, production capacities are generally pretty much unchanged during the period. We know that; all competitors would know that. The relationship of our share of the market, our costs and our customers, while the customers may have changed somewhat, would be known throughout the industry and from this data, together with industry published figures, it would be possible to get a pretty meaningful indication of where we stood presently in terms of our performance financially, not only as far as we are concerned, but as far as the relativities to our competitors may be concerned as well. To that extent, we would be most concerned that our position were known generally throughout - outside our own four walls, if you like. And the information that is available would enable that picture, I believe, with all-meaningful constraints to be produced."

Notwithstanding that evidence, it became clear, once Mr. Duckett was cross-examined, that very little of the material in the documents referred to in paragraph 7 of the schedule to Mr. Conlan's affidavit is now confidential or commercially sensitive. Some of it is, but documents which appear to be important for the purposes of the conduct of the principal proceedings by the Commission which are not are the black diary and the loose desk diary sheets earlier referred to. Some of the material in the black diary remains, according to Mr. Duckett's evidence, confidential but only two or three entries in it fall into that category. That is, of course, the position at the present time. Counsel's cross-examination was directed to the present rather than to November 1976 when many of the documents were handed over. The position was no doubt then different and counsel for the Commission was not concerned to submit that it was not. Furthermore, although much of the information is no longer confidential or commercially sensitive, it remains private information relating to Allied Mills' affairs. It is information which Allied Mills would prefer to keep private rather than to have in other hands, albeit that the information is not any longer confidential or commercially sensitive. It should be observed at this point that this Court has express power (s.50 of the Federal Court of Australia Act 1976) to make an order restricting the publication of documents tendered in evidence before it. It depends upon the circumstances of each case as to whether a judge will exercise his discretion in favour of making an order; and it is true that judges will exercise their discretion, to a degree, unevenly; compare the judicial disagreement evidence in the Cricket case, Australian Broadcasting Commission v. Parish (1980) A.T.P.R. 42, 193.

If a case of this kind were in a court other than this one, the court would have power at common law to restrict publication just as this Court has express statutory power to do so. I made it clear to counsel for Allied Mills that I would be prepared in appropriate cases to exercise the jurisdiction which I have under s.50. I did in fact exercise it in relation to some of the documents tendered in the present proceedings. Upon reflection I think I may have been a little over-cautious in the interests of Allied Mills in exercising it, but at that stage I was not quite sure what the position would turn out to be in relation to a number of the documents and I thought it better to err on the side of caution. I have from time to time made orders in the principal proceedings in relation to some documents which have been tendered. The fact that the jurisdiction to restrict publication exists and that the Court has shown a willingness to exercise it has not acted as a break upon Allied Mills' wish to persevere with these proceedings. The reason for that approach is obvious. The real object of the proceedings, as I have earlier said, is to prevent the use of the documents by the Commission in its conduct of its case in the principal proceedings.

I should next refer to the circumstances in which the documents came to be handed over to the Commission. Although a number of documents were handed over in November 1976, not all of them were.

Mr. Matthews called at the Commission's offices in Melbourne on 1 November, 1976. He was interviewed by Mr. Conlan. He was at first unwilling to disclose the identity of his employer or the product with which he was concerned. But Mr. Conlan said that after about 45 minutes of questioning Mr. Matthews gave his name "and eventually the products concerned and the companies concerned." Mr. Conlan's evidence continued, "Following that, he proceeded to give us a rough outline of the details as he knew them, and specific instances of conversations, etc." Mention was made of documents but no documents were produced on that occasion. Nor was any produced on the second occasion but there was a conversation about their production. Mr. Conlan's evidence is that he had to leave the room during the interview which was being conducted by himself and Mr. Jordan. When he returned Mr. Jordan said to him in Mr. Matthews' presence, "I have just been telling Mr. Matthews about s.155 of the Trade Practices Act." Mr. Conlan then said to Mr. Matthews, "If the Commission has reason to believe that a contravention has occurred, and you or any person is capable of providing information in relation to the contravention, the Commission can obtain both documents and the information from yourself or from the company you are employed by or any other person." Mr. Conlan's evidence proceeded as follows:

"Yes, and can you remember any other parts of the conversation relating to section 155 of the Act? - - - - Yes, I recall, I have a recollection that I said to Mr. Matthews from the information he had given me that morning and the interview before that there seemed to me reason to believe that he was capable of providing information, and also I advised Mr. Matthews that was not be taken as committing the commission to any course of action.

What happened after that? - - - - Well, Mr. Matthews - and I cannot recall his exact words - but he replied to the extent 'If you can get them from me I might as well give them to you'.

Did the interview continue for any appreciable time after that? - - - - I think about 10 minutes to 15 minutes after that, and Mr. Matthews agreed at the end of the interview that he would bring the documents in the next day."

The following day Mr. Matthews returned with a number of documents. He went through the details of them with Mr. Conlan. It is unnecessary to specify which of the documents they were but they included the black diary.

Mr. Jordan's evidence is not as specific as that of Mr. Conlan. But he said that the subject of documents was discussed. He added, "I told Mr. Matthews that the Commission had powers under section 155 of the Act to require a corporation or a person to produce evidence, documents, material that may be of assistance in the investigation". Mr. Jordan said he told Mr. Matthews of the effect of s.155 of the Act on one further occasion. He was present when Mr. Matthews produced the documents. The date of Mr. Matthews second visit was deposed to by Mr. Jordan (at least so the transcript records) as 2 December, 1976. There is no question but that the date was 2 November, 1976. Mr. Matthews was asked about the circumstances in which he handed over the documents. The questions were asked him in cross-examination rather than in his evidence in chief. He referred to the fact that there had been a series of discussions with officers from the Commission. His evidence continued as follows:

"In the course of which they told you, and I am putting to you, in effect, they could force you to disclose information? - - - - They did.

And following that you determined that if the material could be compulsorily acquired you may as well give it voluntarily? - - - - Yes."

Neither Mr. Conlan nor Mr. Jordan were cross-examined about their evidence in chief concerning the statements which were made to Mr. Matthews about the effect of s.155 of the Act. In those circumstances, and notwithstanding the answers given by Mr. Matthews in his cross-examination, I have no hesitation in saying that I accept the evidence of Mr. Conlan and Mr. Jordan. To the extent that there is any difference in the evidence of the two witnesses I prefer that of Mr. Conlan. In reaching my conclusion I bear in mind that Mr. Matthews, along with Mr. Conlan and Mr. Jordan, was called in the Commission's case and that his evidence was given after the evidence of Mr. Conlan and Mr. Jordan. Nevertheless, no application was made that Mr. Conlan and Mr. Jordan be brought back for further cross-examination after Mr. Matthews' evidence was concluded. Mr. Conlan was in court for a good deal of the hearing and, in any event, I would have had no hesitation in requiring both witnesses to return to the witness box if counsel for Allied Mills had sought to ask them further questions.

Further documents were delivered by Mr. Matthews to the Commission in July 1977. These were the loose sheets from the desk diary earlier referred to. According to Mr. Matthews, whose evidence on this point I accept, they were discovered by him in the glove box of his car. He had not been aware that they were there until he cleaned out the glove-box at about the time he sent the documents to Mr. Conlan. The other documents were found by Mr. Matthews amongst papers he had at home and were handed over to the Commission's solicitor in 1979. It is to be observed that at the time the first documents were handed over, Mr. Matthews was still in the employment of Allied Mills. But his employment ceased on 2 December, 1976, so that on the later occasions when he handed over documents he was not in Allied Mills' employ.

The only other evidence to which I find it necessary to refer is evidence given by Mr. Matthews in the course of his cross-examination as to the purposes for which he prepared the entries in the pocket diary and those in the black diary. He said that he had not been given any instructions by anybody in Allied Mills to keep the notes and he was asked the purpose for which he made them. His answer was as follows:

"In order that I might, as I visualised it, at some later date persuade my immediate superior to join me in approaching his immediate superior, the executive director, in that my immediate superior Mr. Street, with me - and I visualised with my opposite number at Sydney, Mr. Trist, who had already agreed with me he would never go along with any improper agreement, if the three of us with the evidence I accumulated went to the executive director who, on the information I had, was planning to do this thing, we could persuade him to drop it. Alternatively, we could persuade him to seek to have the arrangement registered and let the Trade Practices Tribunal commission determine whether it was proper or not."

I propose to accept the evidence which Mr. Matthews gave as to his purposes. Neither counsel suggested that I should do otherwise.

It is now convenient to mention the causes of action relied upon by Allied Mills and the defences to them relied upon by the Commission. Four causes of action are relied upon. They are as follows:

1. An action in detinue for the recovery of the documents upon the basis that they are the physical property of Allied Mills. It is submitted that equity will require, in those circumstances alone, not only the return of the documents which it is said have been wrongfully detained from Allied Mills but also the delivery up of all copies thereof in the possession or power of the Commission.

2. An action based upon breach of confidence for the return of what are said to be confidential documents belonging to Allied Mills. The action is based alternatively upon breach of an implied term in Mr. Matthews' contract of service and upon an obligation which it is said he owed Allied Mills in equity to keep its affairs confidential except in the course of his employment. It is the submission of Allied Mills that it is not to the point that many of the documents are not now confidential or commercially sensitive, or that they are less confidential or less commercially sensitive than they were four years ago. In its submission it is the time at which the documents came into existence which is material; Thomas Marshall v. Guinle (1979) Ch.227 at pp.248-249. It is said that the Commission stands in no better position than Mr. Matthews either because, by reason of the very contents of the documents themselves, it must have been obvious to the Commission that the documents were confidential with the result that it had notice of that circumstance, or, because it took the documents as a volunteer. Reliance was placed upon Ashburton v. Pape (1913) 2 Ch.469

3. The wrongful inducing by the Commission of a breach by Mr. Matthews of his contract of service. It was said that his contract of service contained an implied term that he would keep information confidential and would not hand over documents concerning it to strangers to the company otherwise than in the course of his employment. The cause of action was said to be maintainable, notwithstanding that some of the documents were handed over long after Mr. Matthews' contract had been terminated.

4. Breach of copyright.

The defences to these causes of action were as follows:

1. The Court would not grant all the relief sought solely upon the basis that the property in the folders and pieces of paper upon which writing appeared were the property of Allied Mills. In particular it would not order the delivery up of copies nor restrain the Commission from disclosing or making use of the documents.

2. Very little of the material in the documents was now of a confidential nature. The material date was the present time and not either the dates when the documents came into existence or when they were handed by Mr. Matthews to the Commission.

3. Considerations of public policy required the dismissal of the proceedings because

(a) the documents disclosed an iniquity and there is "no confidence as to the disclosure of iniquity"; Gartside v. Outram (1857) 26 L.J. (Equity) 113 at p.114; or,

(b) the documents were to be used directly or indirectly in proceedings to recover a penalty for breach of the law. In those circumstances public policy required that the return of the documents to their owner should await the outcome of the proceedings.

4. As to copyright -

(a) there was no copyright in some of the documents

(b) in cases where there was copyright, the copyright was not in each instance the copyright of Allied Mills.

(c) the copying of the documents was authorised by s.43 and/or s.183 of the Copyright Act 1968.

(d) The same considerations of public policy referred to in paragraph 3 above applied to justify the copying of the documents.

As earlier foreshadowed, it is now necessary to say something of the jurisdiction which I have assumed. Both parties submitted that I had jurisdiction but their agreement in that respect did not relieve me of the task of satisfying myself that there was jurisdiction to give or refuse the relief which is claimed.

Because of doubts as to jurisdiction, I directed, pursuant to s.78B of the Judiciary Act 1903, service of notice of the proceedings upon the Attorneys-General for the Commonwealth and for the States of New South Wales and Victoria. When the hearing of the cross-claim commenced on 1 December, 1980, counsel for the Commission announced that he appeared also for the Attorney-General for the Commonwealth who sought leave to intervene. The Attorney-General for the State of New South Wales appeared by senior counsel and also sought leave to intervene. I granted both applications for leave to intervene. There was no appearance by the Attorney-General for Victoria. It was submitted on behalf of the Attorney-General for the Commonwealth that there was jurisdiction. That submission was based upon a wide view of the ambit of operation of s.32 of the Federal Court of Australia Act 1976 and also upon a narrower view of it. It was submitted on behalf of the Attorney-General for New South Wales that s.32 was invalid. Alternatively it was submitted that it had a narrow and restricted operation.

Senior counsel for the Attorney-General for the Commonwealth and for the Commission submitted that, whatever operation s.32 might have, it was plainly valid and effective to confer on this Court jurisdiction to hear a matter which was essentially federal in its nature, provided it was associated with another matter in respect of which jurisdiction was otherwise conferred on the Court, that is conferred otherwise than by reason of the operation of s.32. Counsel were all in agreement that the two proceedings, that is the principal proceedings and the cross-claim, were associated matters. In my opinion counsel are clearly correct in their joint view on that aspect of the problem.

The cross-claim was submitted to be a federal matter because it was, within the meaning of s.75 of the Constitution, a matter in which the Commonwealth was a party (paragraph (iii)) It was submitted that the Commission, if not the Commonwealth, was an emanation or agency thereof. The case was one in respect of which the High Court had original jurisdiction. The Supreme Courts of the States would also have jurisdiction but only by reason of their being invested with federal jurisdiction; Judiciary Act 1903 s.39(2).

In support of his submissions counsel embarked upon a review of the Act for the purpose of demonstrating that the Commission was in effect the Crown or the Commonwealth. I shall come to refer in detail to that submission in a moment. Before I do so I should mention that the submission was adopted by counsel for Allied Mills. Counsel for the Attorney-General for the State of New South Wales sought instructions and said that these were that if jurisdiction were to be rested on the narrower ground relied upon by counsel for the Commission and the Attorney-General for the Commonwealth in the submission which had been put, he would not wish to be heard. Certainly he did not wish to say anything in opposition to my assuming jurisdiction upon that basis. I said that I was satisfied, upon the basis of the argument put, that I had jurisdiction on the narrower view of s.32 of the Federal Court of Australia Act which was advanced. I said that I would publish reasons later and that these might be included, as indeed they are, in my reasons for judgment when announcing my decision on the cross-claim. Counsel for the Attorney-General for the State of New South Wales then withdrew.

At that point it seemed unlikely that the matter would be referred to again. But when counsel for Allied Mills came to reply upon the submissions made by counsel for the Commission in relation to copyright, particularly those based upon s.183 of the Copyright Act, counsel submitted that the Commission was not the Commonwealth nor any agency or emanation thereof. I put to him that the matter had already been decided in that I had assumed jurisdiction upon the basis that it was. I further pointed out to him that he had adopted submissions made by counsel for the Attorney-General for the Commonwealth and the Commission. He said, notwithstanding those considerations, that he wished nevertheless then to submit that the Commission was not the Commonwealth nor any emanation or agency of it, and to the extent that this involved a retraction of his earlier adoption of the Commission's submissions he did not shrink from facing up to the problems that then confronted him. The essential problem for him then was that if I were to adopt his submission for the purposes of the Copyright Act, it would follow that I would also take the view that I had not jurisdiction upon the narrower view of s.32 which counsel for the Commission had propounded. If that were right, and if there were not upon some other basis jurisdiction, the proceedings would fail for want of jurisdiction. Of course it might have been that the wider view of s.32 of the Federal Court of Australia Act would have proved to be correct; that matter was not determined until the High Court gave judgment in two matters it then had under reservation, namely, Philip Morris Incorporated v. Adam P. Brown Male Fashions Pty. Limited and United States Surgical Corporation v. Hospital Products International Pty. Limited (High Court Nos. 31 and 109 of 1980). Judgment was delivered in those matters on 10 February, 1981. The wider view of s.32 was rejected, but the judgments support the narrower view of its operation upon which I have relied.

I confess to having had doubts as to whether the submission made by counsel for Allied Mills in relation to the Copyright Act was open to him to make at the point of time he made it. That was because my decision on the question of jurisdiction was founded upon the Trade Practices Commission being an agency or emanation of the Commonwealth. However, the submission originally went to jurisdiction, and, if during the hearing, something had come to my attention which suggested to me that, after all, I had no jurisdiction, it would seem to me that I ought to have reconsidered the question. The question of jurisdiction must, in one sense, always remain open until after judgment is delivered. If a more detailed consideration of the matters relied upon by counsel for the Attorney-General for the Commonwealth and the Commission had led me to the view that my earlier decision was incorrect, I would have been inclined to throw the whole matter open for argument again. Certainly I would have seen to it that counsel for the Attorney-General for New South Wales was informed of what had transpired. However, upon further reflection, I have not changed my mind. In my opinion the Commission is an emanation or agency of the Crown. My reasons for that conclusion may be shortly stated. They are based upon: -

(1) The purposes and objects of the Trade Practices Act. I shall say something more of this matter when I come to the question of public policy.

(2) The provisions of s.29 of the Act which are as follows:

"29. (1) The Minister may -

(a) give directions as to matters to be given special consideration by the Commission in determining applications for authorizations or in making decisions for the purposes of paragraphs 93(3)(a) or (b); and

" (b) give directions to the Commission in connexion with the performance of its functions or the exercise of its powers under this Act, not including, except as mentioned in paragraph (a), functions or powers related directly or indirectly to Part VII,
and the Commission shall comply with any directions so given

(2) Any direction given to the Commission under subsection (1) shall be in writing and the Minister shall cause a copy of the direction to be published in the Gazette as soon as practicable after the direction is given.

(3) If either House of the Parliament or a Committee of either House, or of both Houses, of the Parliament requires the Commission to furnish to that House or Committee any information concerning the performance of the functions of the Commission under this Act, the Commission shall comply with the requirement."

It is to be observed that s.93 is in Part VII of the Act. It is understandable, in my opinion, that the directions which the Minister might give the Commission in relation to authorisations applied for pursuant to Part VII of the Act should be limited in the way that is provided for in paragraph (1)(a) of the section. In my opinion that does not at all detract from the fact that the Commission acts in relation to all other matters subject to any directions which the Minister may give. The principal proceedings are proceedings in which the Commission sues for penalties and injunctive relief. They are brought pursuant to Part VI of the Act. The Minister might have given a direction that the proceedings be brought or not brought as he saw fit. It is to be observed also that s.77 of the Act provides that the penalties provided for in s.76 may be recovered in proceedings instituted either by the Minister or the Commission. Section 80 contains similar provisions in relation to an injunction.

(3) The functions of the Commission being ordinary functions of government. The contrary was submitted by counsel for Allied Mills. It is true that trade practices legislation is comparatively recent in Australia. But the predecessor of the legislation was the Australian Industries Preservation Act 1906. That Act did not have any counterpart to the Commission or the Commissioner appointed pursuant to the provisions of the Trade Practices Act 1965, ss.23 and 24. It is true that there is not, in that Act, any general sub-jugation of the Commissioner to directions by a Minister. But the provisions of s.47(4) provided that the Attorney-General might direct the Commissioner to investigate the facts and circumstances with respect to an examinable agreement or examinable practice. Furthermore, the Commissioner did not institute proceedings for offences. These were instituted by the Crown in the usual way. In coming to the conclusion that the functions of the Commission are ordinary functions of government I have also taken into account the purpose and policy of the Act referred to in paragraph 1 above. It cannot be correct to say that because Parliament enacts new legislation empowering or obliging the executive to undertake new fields of activity, that those fields of activity are not ordinary functions of government simply because they have not previously been undertaken or required.

Since reserving my decision my attention has been drawn to the joint judgment of Deane and Fisher JJ. in Thomson v. Trade Practices Commission (1979) 27 A.L.R. 551. They reached the conclusion that the Commission was "plainly an instrumentality or agent of the Crown in right of the Commonwealth" (p.567). Their decision in that respect is, of course, binding on me.

For the reasons I have given I am satisfied that I do have jurisdiction to entertain the cross-claim. The later submissions made by counsel for Allied Mills in relation to copyright have not persuaded me that the earlier view which I had formed was incorrect. The only other matter which I should mention in relation to jurisdiction is the alternative basis for jurisdiction relied upon by counsel for Allied Mills. It was their submission that the Court had jurisdiction because of the provisions of the Judicial Review (Administrative Decisions) Act 1977. In the view that I took of the matter I did not think it necessary to embark upon a lengthy consideration of the questions to which this submission gave rise. Accordingly I express no view upon them but I do indicate that the Act last mentioned was relied upon strongly by counsel for Allied Mills as an alternative basis for the jurisdiction of this Court to entertain this claim.

I can now turn to the questions of substance that are between the parties. Subject to the positive matters raised by way of defence by the Commission, I am prepared to accept that Allied Mills ought to succeed in its claim for breach of confidence. A detailed consideration of its cause of action for breach of confidence would reveal that there is a question as to whether the cause of action is founded on the breach of an implied term of the contract of service or whether it is founded upon the breach of an obligation imposed, not by reason of any contract, but because equity considers that the relationship of the parties is such as to require that there be imposed upon a servant an obligation to keep the affairs of his master confidential.

A large number of cases establish that on one basis or the other (or perhaps on both bases) Allied Mills has the rights which it claims against Mr. Matthews and that the Commission can for one reason or another (but subject again to the positive matters on which it relies) stand in no better position than he. I do not propose to go to the detail of the authorities but I mention Prince Albert v. Strange [1849] EngR 261; (1849) 1 Mac. & G. 25, Lamb v. Evans (1893) 1 Ch.218 per Bowen L.J. at p.229 and per Kay L.J. at pp.236-237, Robb v. Green (1895) 2 Q.B. 315 at pp.316-318, Measures v. Measures (1910) 1 Ch. 336 per Joyce J. at pp.342-343 (in passing I note that the appeal did not affect what Joyce J. said (1910) 2 Ch.248) Ormonoid Roofing and Asphalts Limited v. Bitumenoids Limited (1930) 31 S.R. (N.S.W.) 347 and Interfirm Comparison (Australia) Pty. Limited v. Law Society of New South Wales (1975) 2 N.S.W.L.R. 104. Argyll v. Argyll (1967) Ch.302 is a case in a somewhat different category but, nevertheless, in my opinion throws light on the present problem. I also think that Allied Mills gains assistance from Ashburton v. Pape (earlier cited) notwithstanding that that was a case, not of confidence, but of an attempt to get round legal professional privilege. I agree with counsel for the Commission that there is a substantial question as to whether very much of the information in any of the documents could now be regarded as confidential because it has, from the point of view of Allied Mills, not now any substantial commercial sensitivity. But, as counsel for Allied Mills submitted, I do not think that is of consequence. I would respectfully adopt what was said by Megarry V.C. in Thomas Marshall Limited v. Guinle (1979) 1 Ch. at p.248. In my opinion it is enough if the owner (Allied Mills) believes that the information is confidential or secret "i.e. that it is not already in the public domain". As his Lordship says, it may be that some or all of his rivals already have the information; but as long as the owner believes it to be confidential he is entitled to try to protect it. The owner's belief must, of course, be reasonable. In my opinion the belief which Allied Mills held was reasonable. Counsel for the Commission did not cross-examine Mr. Duckett to suggest that it was not.

The causes of action with which the cases I have cited deal are those founded either upon breach of an implied term in the contract of service or breach of an obligation imposed by equity upon Mr. Matthews to keep the affairs of the company confidential. I do not believe that Allied Mills would be entitled to the relief it claims simply because it had the property in folders in which the information is contained or in the pieces of paper upon which it is written. It would be entitled upon that basis to a return of those folders and pieces of paper but not to the consequential relief which it claims. I do not express a final view on that matter because it is unnecessary to do so. Subject to the positive matters relied on by the Commission, Allied Mills would, in any event, be entitled to succeed on its causes of action based on breach of confidence.

Insofar as reliance is placed upon a cause of action for inducing a breach of contract I think there is a question as to whether the evidence establishes any inducement. That question is in part dependent upon the correct understanding of the ambit and operation of s.155 of the Act. Again, I do not find it necessary to decide the questions which are involved. If they were to be answered favourably to Allied Mills, it would be in no stronger position than it is in relation to the causes of action for breach of confidence which it has. The question of the resolution of the conflict of public policies which I believe to be at the heart of the case remain whether Allied Mills is otherwise entitled to succeed only on its causes of action for breach of confidence or whether it is entitled, in addition, to rely on a cause of action for inducing a breach of contract. Subject to the cause of action based upon breach of copyright, the question of public policy is the remaining question to be decided. I propose to leave copyright until after I have dealt with that question.

A starting point for the consideration of it is the purpose and policy of the Act. The Act was passed in 1974. It replaced earlier Acts passed in 1965 and 1971 respectively, the latter being the Restrictive Trade Practices Act 1971. The precursor of trade practices legislation in Australia was, as earlier mentioned, the Australian Industries Preservation Act 1906.

No lengthy analysis of the various provisions of the Act passed in 1974 is needed to demonstrate that Parliament intended, by the enactment of its provisions, to guard the public generally, or in some cases, sections of it, against acts and practices which it considered contrary to the public interest. The provisions upon which the Commission relies in the principal proceedings are to be found in s.45, which, as the side note indicates, has to do with contracts, arrangements or understandings in restraint of trade or commerce. Section 45 and some of the other provisions to which I am about to refer have been amended since the events with which this litigation is concerned. But it is to the form of the Act as it was in the latter months of 1976 that I shall refer.

Section 45 is found in Part IV of the Act which is headed "Restrictive Trade Practices". Also in that Part are ss.46, 47, 48 and 49. These specify monopolization, exclusive dealing, retail price maintenance and price discrimination as other restrictive practices which the legislature is concerned to forbid or at least affect. Section 50 provides that a corporation shall not acquire, directly or indirectly, any shares in the capital, or any assets, of a body corporate where the acquisition is likely to have the effect of substantially lessening competition in a market for goods or services.

To be read with the sections I have mentioned is s.51 providing for certain exceptions and also Part VIII dealing specifically with retail price maintenance. Complementary to Part IV is Part VII which contains provisions which empower the Commission in the circumstances there provided for to grant authorizations or clearances in respect of conduct otherwise unlawful by reason of the provisions of Part IV.

Part V deals with consumer protection. It has two divisions, the first dealing with unfair practices, and the second with conditions and warranties in consumer transactions. It is unnecessary to deal with the detail of the provisions of those divisions except to mention the provisions of ss.52 and 53. The former section provides that a corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive. Section 53 deals with false representations. A corporation shall not, in trade or commerce, in connection with the supply or possible supply of goods or services, for example, falsely represent that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model. There are other specific representations referred to which if false involve a breach of the section.

Part VI of the Act provides for the enforcement of remedies. Section 76 provides that if the Court is satisfied that a person has contravened a provision of Part IV the Court may order the person to pay such pecuniary penalty not exceeding $50,000 in the case of a person not being a body corporate, or $250,000 in the case of a body corporate in respect of each act or omission by the person to which the section applies as the Court determines to be appropriate having regard to all relevant matters including the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission, the circumstances in which the act or omission took place and whether the person has previously been found in proceedings under the Act to have engaged in any similar conduct. Section 76 is to be contrasted with s.79 which provides that a person who contravenes a provision of Part V, other than s.52, is guilty of an offence punishable on conviction. In the case of a person not being a body corporate conviction results in a fine not exceeding $10,000 or imprisonment for a period not exceeding six months. In the case of a body corporate the fine is not to exceed $50,000.

By both the provisions of ss.76 and 79 the legislature had demonstrated that the observation of the terms of the Act, particularly the stamping out of the unlawful practices specified in Part IV and Part V of Division I was in its view of substantial public concern. A penalty of $250,000 in the money of 1974 is a very substantial penalty indeed. I have not so far mentioned the provisions of s.78. It provides that criminal proceedings do not lie against a person by reason only that the person has contravened a provision of Part IV. Thus there is a distinction in the view that the legislature had of breaches of Part IV and breaches of Part V. Conduct which amounts to a breach of Part V is criminal; conduct which amounts to a breach of Part IV is not. On the other hand, at least so far as corporations are concerned, conduct amounting to a breach of Part IV might be punished by a penalty five times as great as that which could be imposed in relation to conduct amounting to a breach of Part V. In my opinion the fact that s.78 does not make conduct constituting a breach of Part IV criminal does not detract from the fact that the legislature intended, by empowering the court to impose very substantial penalties, to see to it, so far as it could, that the provisions of Part IV were obeyed. The very size of the penalties which are able to be imposed indicates the seriousness of the view which the legislature took as to the conduct which it was proscribing. It is true that the provisions of s.78 may indicate that a breach of one of the provisions of that Part may not have the same moral heinousness as is involved in the commission of a misdeamour, for example one of those provided for in s.53. That is a matter strongly relied upon by counsel for Allied Mills. To his submission in that regard I shall in due course come.

There are dicta in some of the authorities which support the view that the provisions of the Act were intended to benefit the public and were regarded by the legislature as matters of high public policy from the point of view of the regulation of the community's trade and commerce. Mikasa (N.S.W.) Pty. Limited v. Festival Stores [1972] HCA 69; 127 C.L.R. 617 was a case in which the provisions of the 1965 Act relating to retail price maintenance arose for consideration. In the course of his judgment Barwick C.J. said (p.630):

"The essence of the practice of resale price maintenance, though its manifestations may be various, is the endeavour of a vendor of goods to restrict the purchaser's ability to sell his goods at prices of his own designation and thereby to extend the control by the vendor of the market in the goods. This endeavour, when not restrained by law, can be successful because of the relevant positions of the parties, the vendor to be able to exact the purchaser's assent to the restriction being, in some way, in an advantageous or overpowering position. Monopolising, and other methods and devices designed to distort the market in goods and to limit the ability of traders to trade therein, have long been regarded as unacceptable in a free society. Their prohibition or control has from time to time been accepted as a proper adjustment of the rights inter se of traders in the market. It seems to me that a law preventing entirely or sub modo such a practice as resale price maintenance is no more than a law accommodating the liberty of the vendor to trade to the liberty of the purchaser to trade, each under the law to be free, in the proper sense of that word, to trade in the goods. Part VIA of the Act is, in my opinion, relevantly, in its nature, a regulatory law."

In the same case Menzies J. said (p.640):

"It is, of course, obvious that not every regulation of trade which is imposed by the Commonwealth Parliament or a State Parliament falls within this description of permissible regulation (having regard to s.92 of the Constitution) but resale price maintenance is a practice that has so generally been found to require legislative regulation in the public good that I have no difficulty in concluding that to regulate it as has been done by Pt VIA of the Act is to do no more than provide part of the legal framework within which inter-State trade may be freely carried on. Part VIA of the Act can stand with s.92 of the Constitution."

Both the interpolation and the emphasis are mine.

In Trade Practices Commission v. Stihl Chain Saws (Aust) Pty. Limited (1978) 2 A.T.P.R. 17882, Smithers J. was also concerned with retail price maintenance. The matter arose prior to the 1977 amendments of the Act so that the Act had, for Smithers J., the same form as it has for me. After referring to ss.48 and 76 and to the penalty provided for in the latter section he continued (pp.17895-17896):

"It is clearly the intention of Parliament to lay down conditions for the conduct of corporate trade and commerce which will ensure that traders operate in competitive conditions and that the public has the benefits which flow therefrom. So far as resale price maintenance is concerned the object of the Act is to create conditions in which the public will benefit from traders competing with each other in respect of prices unfettered by price restraints imposed by suppliers of goods upon retailers."

In Melbourne Home of Ford Pty. Limited v. Trade Practices Commission (1979) 2 A.T.P.R. 18080, Smithers J. was concerned with the provisions of Part XII of the Act in which are to be found ss.155 and 156. The former section provides that where the Commission, the Chairman or the Deputy Chairman has reason to believe that a person is capable of furnishing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute a contravention of the Act, a member of the Commission may by notice in writing served on the person require him to furnish information, produce documents or to appear before the Commission to give evidence. Of these provisions Smithers J. said (p.18084):

"Part XII takes its place in an Act which is designed to introduce practices in trade and commerce which accord in matters of competition, prices, commercial morality and otherwise with standards prescribed by Parliament. By subjecting persons who contravene the provisions of the Act to remedial action at the hands of private persons and to proceedings for penalties and allied actions of considerable severity by the Commission and other persons, Parliament has indicated an intention to ensure, so far as possible, that the Act is obeyed. Part XII is obviously designed by Parliament to confer upon the Commission the authority to seek and obtain information from corporations and others for the purpose of facilitating the enforcement of the Act by legal process. So important did Parliament consider this function that it authorised the Commission to seek and obtain such information even from those suspected of contraventions of the Act and even where in supplying it the persons concerned may make incriminating admissions."

His Honour's decision was upheld on appeal; (1980) A.T.P.R. 42,402.

In Commercial Bank of Australia Limited v. Insurance Brokers Association of Australia (1977) 16 A.L.R. 161, Bowen C.J. was dealing with the provisions of s.52 of the Act. It is to be remembered that there is no penalty provided for breach of that section but, pursuant to s.80 of the Act, an injunction may be obtained to restrain breaches of it. In the course of his judgment Bowen C.J. said (p.167):

"It is necessary to say something at the outset about the task of the Court in approaching a claim for interim relief. Under s.80 of the Trade Practices Act, it is provided that the Court may, on the application of the Minister, the Commission, or, subject to an immaterial qualification, 'any other person', grant an injunction restraining a person from engaging in conduct that constitutes or would constitute a contravention of the provisions of Pt V of the Act which includes s.52. It is apparent that in some cases where a private person brings the proceedings, that person may be endeavouring to protect his own proprietary interest. This is so where, for example, a plaintiff seeks to "restrain the misleading conduct in the course of trade or commerce which results in the goods of another being passed off as his goods, thereby causing him loss and damaging his goodwill. On the other hand, there are cases where no proprietary interest is involved but what is sought to be protected is the interests of consumers, that is, the public, and to protect them from being misled in the course of trade or commerce."

That view of the considerations proper to be taken into account in the exercise of the Court's jurisdiction to grant injunctive relief has been followed on many occasions. I refer to World Series Cricket Pty. Limited v. Parish (1977) 16 A.L.R. 181, particularly per Bowen C.J. at p.191 and Brennan J. at p.204; and to Elna Australia Pty. Limited v. A. F. Harding & Co. Pty. Limited (1978) 4 T.P.C. 308 at p.311. Finally I refer to Hornsby Building Information Centre Pty. Limited v. Sydney Building Information Centre Limited [1978] HCA 11; 140 C.L.R. 216 where Murphy J. said (p.234) that in the granting of an interim injunction in proceedings under the Act, the convenience of the defendant was, of course, relevant "and the public interest is a powerful consideration". The proceedings were proceedings between private parties brought pursuant to ss. 52 and 80 of the Act.

In the review of the Act that I have undertaken, I have omitted mention of some parts of it. Apart from its preliminary provisions I have not made mention of Part IX dealing with the review by the Trade Practices Tribunal of determinations of the Commission nor of Part X dealing with overseas cargo shipping. The provisions contained in these Parts would not alter or affect any view expressed concerning the considerations of public policy and public interest which underly the provisions of the Act. Indeed, those of Part X would, if anything, add weight to the view that the important purpose of the legislation was to protect the community, or sections of it, in relation to the terms and conditions upon which goods and services are provided to it. The Act, looked at as a whole, is a declaration of policy on this matter. It provides a code of conduct for the regulation, in economic matters, of the commercial community. Its design in Part IV is to outlaw the most notorious restrictive trade practices and, in Part V, to endeavour to protect consumers from a number of other practices which have proved undesirable. Unlike the Sherman legislation in the United States, it contains a number of provisions, particularly those in s.51 and in Part VII, which expressly except conduct otherwise unlawful from the operation of the Act or enable, upon the grounds provided for, persons who fear that their conduct may be a breach of the Act to obtain the Commission's (and on appeal the Tribunal's) authority to carry it out. But if the conduct is contrary to one or more of the provisions of the Act, and is not excepted or authorised, those responsible for it are subject to the heavy penalties which the legislation provides.

A review of the Act for present purposes is not complete without consideration of the provisions of s.155. I have earlier referred to the terms of it when citing Melbourne Home of Ford Pty. Limited v. Trade Practices Commission (supra). The fact that the Commission is given the wide powers provided for in the section is a further indication that the legislature regarded the provisions of the Act as of great public importance. Otherwise it would not have facilitated its enforcement by including in it a provision such as s.155. For that reason the powers conferred by the section ought not to be regarded as restrictive of the Commission's function but rather as enabling provisions empowering the Commission more expeditiously to carry out its functions.

It was submitted by counsel for Allied Mills that their effect was such that documents or information could not lawfully be obtained from a person unwilling to provide them except by recourse to the section. If another person's documents came into the Commission's hand by way of an informant, as in the present case, the Commission's proper course, so it was said, was to offer to return them to their true owner, in this case Allied Mills. Any other course was unlawful. I am satisfied that that submission should be rejected, but I prefer to state my reasons for that conclusion after I have dealt with the submissions on public policy to which I am about to come.

Before I do so, it is convenient to mention some other submissions in relation to s.155 of which it is now convenient to dispose. It was that the documents were obtained unlawfully from Mr. Matthews because they were obtained by Mr. Conlan under duress and by colour of office. Reliance was placed upon the evidence of Mr. Matthews earlier cited. But, as previously said, the evidence which I accept of what occurred immediately before the documents were handed over is that of Mr. Conlan. In my opinion he gave Mr. Matthews a very fair and objective account of the provisions of the section. He pointed out that the matter was one for the Commission and not for him, Mr. Conlan. He was under no obligation to go further. Importantly he did not represent, as counsel's submission suggested, that he himself had authority to serve a notice. Mr. Matthews was a business man of some experience. He could have declined to produce the documents until the service of a notice upon him. If the notice were in any respect not in accordance with the section he could have declined to comply with its terms.

It was also submitted by counsel for Allied Mills that no notice service on Mr. Matthews pursuant to s.155 could have been effective because the documents were not Mr. Matthews' documents; they belonged to Allied Mills. The provisions of s.155 authorise the service of a notice upon a person whom the Commission, its Chairman or Deputy Chairman, has reason to believe "is capable of furnishing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention" of the Act. It was submitted that those words should be construed so as to refer to persons who were lawfully in possession of documents. In other words, so it was submitted, a person was not within the meaning of the section "capable of furnishing . . . . . documents" unless he was the true owner thereof or was in possession of the documents with the true owner's consent. Reliance was placed upon the decision of the Court of Appeal in England in Eccles & Co. v. Louisville & Nashville Railroad Co. (1912) 1 K.B. 135. That case is authority for the proposition that it is inappropriate to serve a subpoena for the production of documents upon a servant in whose possession the documents are. The subpoena must be directed to the person entitled to possession of them. So here it was said that the notice under s.155 must be directed to Allied Mills and could not have been directed to Mr. Matthews. Thus it was improper and illegal for Mr. Conlan to suggest that he, Mr. Matthews, as distinct from Allied Mills, could lawfully be served with a notice. I reject this submission because I consider that there is revealed by the terms of the legislation in question an intention on the part of the legislature to enable the Commission to serve a notice for the production of documents no matter that the person who has possession of the documents may not have a legal right to that possession. I take that view for two reasons. Firstly, the provisions of s.155 are such as to authorise the obtaining, not only of documents, but also of information and evidence. It seems to me that the Commission is entitled to ask, by the issue of a notice, for information or evidence from any person who is capable of giving it. I see no reason to distinguish the position in relation to documents. Then the provisions of s.156(2) empower the Commission to take and retain, for as long as is necessary for the purposes of the Act, possession of a document produced in pursuance of a notice under s.155. The section goes on to provide that the person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by a member of the Commission under his hand to be a true copy. The certified copy is to be received in all courts as evidence as if it were the original. Thus, a distinction is plainly drawn in s.156 between a person capable of producing a document and a person entitled to possession of a document (if it were not for the fact of service of a notice). A person unlawfully in possession of documents produced by him pursuant to a notice would not be entitled to a copy. The person entitled to the copy is the true owner. The same distinction is drawn in s.156(3).

In order that I may come to grips with the arguments on public policy or public interest it is necessary that I should refer in some detail to a number of authorities. I do not believe that the authorities are necessarily consistent with one another. I think this is because the courts have had to grapple with the problem in a variety of situations and have done their best to do justice between parties taking into account the public interests that are in play in the different sets of circumstances that have arisen for consideration.

In Gartside v. Outram (supra) the plaintiffs sought to restrain a former clerk from disclosing any of their dealings and transactions. In answer to the claim the defendant stated that the plaintiffs were in the habit of conducting their business in a fraudulent manner, and specified a particular instance. In support of his answer the defendant filed interrogatories for the examination of the plaintiffs as to the fraudulent transactions. The plaintiffs declined to answer them. On exception to the answer of the plaintiffs it was held that there was no privilege to protect them from answering, the discovery being material to support the defendant's answer, which, if proved, would be a complete defence to the action. In the course of his judgment Wood V.C. said (p.114):

"The true doctrine is, that there is no confidence as to the disclosure of iniquity. You cannot make me the confidant of a crime of a fraud, and be entitled to close up my lips upon any secret which you have the audacity to disclose to me relating to any fraudulent intention on your part: such a confidence cannot exist. I quite agree that a clerk or a person employed in confidence would not be allowed upon a mere roving suggestion, that there was or might be fraud in the transactions of his employer, or even, perhaps, on a general suggestion, that he believed that he could disclose fraud if he had an opportunity of seeing the books of his employers, (though it is not necessary to decide that,) to obtain from his employers that disclosure of their books which, as Mr. Eddis says, the very object of the jurisdiction is to prevent. But this gentleman has put in an answer which has nothing of the character which Mr. Eddis attributed to it, but is as plain and as definite a case as can well be conceived."

Later his Lordship said (p.116):

"The real ground of the jurisdiction, as it is properly put, is founded first upon property, because the Court attempts not to interfere with morals, except in administering civil rights connected with rights of property. There is the property of the employer in those secrets of his business which he is obliged to communicate to others, and which are not to be trifled with. It is a sacred and solemn deposit, but there is no property in these transactions with this gentleman which were of the character I have been describing, and in his answer he has made no disclosures except as to these fraudulent transactions. If he makes out that case set forth by his answer he will make out a very good case for resisting this injunction, and therefore the plaintiffs must enable him, as far as they can by any knowledge in their possession, to arrive at the discovery."

Reg. v. Cox and Railton (a Crown case reserved) (1884) L.R. 14 Q.B.D. 153 was a case concerning legal professional privilege. The material question in a trial was the date of dissolution of a partnership between the two accused. Their case was that it had been dissolved at a date earlier than that upon which the Crown relied. A solicitor was called in the Crown case to prove that after a judgment had been obtained against the two accused they consulted the solicitor in order to be advised how they could defeat the plaintiff's judgment. They asked whether a bill of sale could legally be executed by one of them in favour of the other so as to defeat the judgment. There was at the time they sought the advice no suggestion that any dissolution of the partnership had taken place. The evidence was objected to on the ground that the communication was one between solicitor and client and privileged. The evidence was received but the question of whether it was properly received was reserved for the Court. It was held that it had been properly received. In the course of giving the Court's judgment Stephen J. said (p.167):

"This rule (as to the privilege of legal professional communications) has been accepted and acted upon ever since, and we fully recognise its authority, but we think that the present case does not fall either under the reason on which it rests, or within the terms in which it is expressed. The reason on which the rule is said to rest cannot include the case of communications, criminal in themselves, or intended to further any criminal purpose, for the protection of such communications cannot possibly be otherwise than injurious to the interests of justice, and to those of the administration of justice. Nor do such communications fall within the terms of the rule. A communication in furtherance of a criminal purpose does not 'come into the ordinary scope of professional employment'."

The interpolation is mine. The words quoted by Stephen J. are those of Lord Brougham in Greenough v. Gaskell [1833] EngR 333; (1833) 1 My. & K. 98.

Later Stephen J. referred to Gartside v. Outram (supra) (pp.169-170). After discussing a number of other authorities he concluded as follows (p.176):

"Courts must in every instance judge for themselves on the special facts of each particular case, just as they must judge whether a witness deserves to be examined on the supposition that he is hostile, or whether a dying declaration was made in the immediate prospect of death. In this particular case the fact that there had been a partnership (which was proved on the trial of the inter-pleader issue), the assertion that it had been dissolved, the fact that directly after the verdict a solicitor was consulted, and that the execution creditor was met by a bill of sale which purported to have been made by the defendant to the man who had been and was said to have ceased to be his partner, made it probable that the visit to the solicitor really was intended for the "purpose for which, after he had given his evidence, it turned out to have been intended. If the interview had been for an innocent purpose, the evidence given would have done the defendants good instead of harm. Of course the power in question ought to be used with the greatest care not to hamper prisoners in making their defence, and not to enable unscrupulous persons to acquire knowledge to which they have no right, and every precaution should be taken against compelling unnecessary disclosures."

Next is Weld-Blundell v. Stephens (1919) 1 K.B. 520 where the plaintiff had lent money to a company. He sought a further advance and employed the defendant, a chartered accountant, to look into the affairs of the company. In a letter of instructions to the accountant the plaintiff inserted libellous statements concerning the former manager and an auditor of the company. The accountant handed the letter to his partner who negligently left it at the company's office. It was found by the manager who communicated its contents to the two persons defamed. They sued the plaintiff for libel. It was held by the Court of Appeal that it was the duty of the defendant to keep secret the contents of the letter. However, a majority of the court held that the plaintiff was entitled to recover no more than nominal damages. After referring to the decision of Dowling J. (1918) 2 K.B. 748 in which the learned judge said that he had reached the conclusion that the law did not imply any promise or term as that upon which the plaintiff relied, and saying that he was unable to agree with that view, Bankes L.J. continued (p.527):

"There may no doubt be cases to which the rule laid down by the learned judge may be applied, as for instance confidential communications to a professional adviser as to the proposed commission of a crime, or as to the proposed commission of a civil wrong upon an individual. A contract to keep such a communication secret may well be considered as an illegal contract, and the duty to the public to disclose the criminal or illegal intention may properly be held to override the private duty to respect and protect the client's confidence. Apart from the special nature of the jurisdiction which was invoked in the case of Gartside v. Outram (a case which was much relied upon by Mr. Hogg) I think that that case falls within the class of cases to which I have alluded, and which are entirely distinct in their nature from the present case, where the wrong is completed before the communication is disclosed, and where, as I think, public policy is better served by respecting the confidence than by abusing it."

Warrington L.J. left open the question of what the position would have been if the document had disclosed "a contemplated crime" (pp.532-533). He then discussed Gartside v. Outram (pp.533-534) and suggested that its application was a narrow one. He continued (p.534):

"But even if the judgment is of the wider application, it does not cover such a case as the present. The fraud there alleged was a systematic fraud pursued by the plaintiffs in the course of their business, and the disclosure of the evidence in the defendant's possession would tend to prevent such frauds in the future. I doubt whether the Vice-Chancellor would have come to the same conclusion where, as in the present case, the question relates to a single document, the writing and publication of which is no doubt a cause of action, but the disclosure of which serves no useful purpose, except to enable the person libelled to recover damages for a libel, the existence of which, but for the defendant's neglect, might never have been known to anyone."

Scrutton L.J. dealt with the matter also, but I do not find it necessary to cite any passage from his judgment. I mention specifically, however, the discussion which appears at pp.544-546.

The decision of the Court of Appeal was upheld by the House of Lords; (1920) A.C. 956. It is unnecessary to refer to the detail of their Lordships' judgments but I refer in passing to Lord Wrenbury (p.1000) and I should cite a passage from the judgment of Viscount Finlay by reason of the fact that some reliance was placed upon it by counsel for Allied Mills. It is as follows (p.970):

"Somewhat similar considerations might apply if the agent's breach of confidence had led to an action for penalties. A man may without any moral delinquency have made himself liable to penalties to a considerable amount at the suit of any common informer. It could not be suggested that there would be any obligation upon him to make these facts generally known in order to give an opportunity to any person who might be so minded to play the part of the common informer. Under such circumstances it may well be, as was suggested in Neville's Case ((1919) A.C. 368), that any person who maintained an action for such penalties would be liable to substantial damages in respect of the penalties, the payment of which had been compelled by the maintained action. It might be no answer that there was a legal liability to pay the penalties, as that potential legal liability would never have become effective but for the wrongful act of the maintainer. The same observations might apply if the action for penalties was due to the betrayal by an agent of his principal's confidence."

Initial Services Limited v. Putterill (1968) 1 Q.B. 396 is a case involving the English restrictive trade practices legislation. In August 1966 the first defendant, who had resigned his position as sales manager of the plaintiff launderers, left the plaintiff's employment. He took with him a number of the plaintiff's documents which he handed to reporters of a national newspaper published by the second defendant. He also gave the reporters information about the company's affairs. In September the paper published articles alleging a liaison system between laundries to keep up the prices. The article said that the plaintiffs had increased their prices after the imposition of the selective employment tax ostensibly to offset that tax when in fact they were getting substantial extra profit. The plaintiffs issued a writ against the defendants claiming an injunction, damages and delivery up of confidential papers which were their property. The plaintiffs claimed that the first defendant was in breach of an implied term of his contract of service with them that he would not disclose to strangers confidential information obtained by him in the course of or as a result of his employment. By his defence the first defendant alleged, inter alia, that the plaintiffs had agreed with other laundries to keep up prices; that the agreement was contrary to s.6 of the Restrictive Trade Practices Act 1956 and should have been registered under s.9 of that Act and referred to the Monopolies Commission; and that a circular issued by the plaintiffs to their customers stating that increases in their charges were mainly to offset the selective employment tax was misleading to the public. It was held by the Court of Appeal in England that the defence would not be struck out since it was at least arguable that the information supplied by the defendant was not within the realm of confidence to which a master could hold his servant. In the course of his judgment Lord Denning, M.R. referred to Gartside v. Outram (supra) and Weld-Blundell v. Stephens (supra). He referred to the dictum of Wood, V.C., "there is no confidence as to the disclosure of iniquity", and continued (pp.405-406):

"Mr. Michael Kerr suggested that this exception was confined to cases where the master has been 'guilty of a crime or fraud.' But I do not think that it is so limited. It extends to any misconduct of such a nature that it ought in the public interest to be disclosed to others. Wood, V.C. put it in a vivid phrase: 'There is no confidence as to the disclosure of iniquity.'
In Weld-Blundell v. Stephens, Bankes L.J. rather suggested that the exception is limited to the proposed or contemplated commission of a crime or a civil wrong. But I should have thought that was too limited. The exception should extend to crimes, frauds and misdeeds, both those actually committed as well as those in contemplation, provided always - and this is essential - that the disclosure is justified in the public interest. The reason is because 'no private obligations can dispense with that universal one which lies on every member of the society to discover every design which may be formed, contrary to the laws of the society, to destroy the public welfare': see Annesley v. Anglesea (Earl) ((1743) L.R. 5 Q.B. 317n.; 17 State Tr. 1139).
The disclosure must, I should think, be to one who has a proper interest to receive the information. Thus it would be proper to disclose a crime to the police; or a breach of the Restrictive Trade Practices Act to the registrar. There may be cases where the misdeed is of such a character that the public interest may demand, or at least excuse, publication on a broader field, even to the press."

Strong reliance was placed by the plaintiff upon the fact that the disclosure had been to the press rather than to someone who could be regarded as a proper authority. Salmon L.J. (as he was) thought that such a proposition was not self-evident. Later he said (pp.409-410):

"I regard this case, however, from a more fundamental point of view. I am by no means satisfied that there is this general blanket of confidence for which Mr. Kerr contends. I am not, however, deciding that it is not so. All I am saying is that I am not convinced that it is so. An alternative view is this, that in every case in which it is suggested that there has been a breach of confidence by the servant, the first question for the court to decide is: was the information which the servant received in fact clothed with confidence? May I test it in this way? Suppose the servant had entered into a contract with the master not to disclose certain information, would that contract be enforceable or would it be illegal? To my mind that must depend on the circumstances of the particular case. Consider this case: the Restrictive Trade Practices Act, 1956, is an Act which certainly was very much concerned with the public interest. It imposed an obligation upon these plaintiffs to disclose to the registrar the agreements into which they had entered with their fellow launderers in relation to the supply of goods. That obligation was imposed in the public interest. Such agreements are under the Act deemed to be contrary to the public interest unless, as Mr. Kerr put it, the persons who entered into the agreement can succeed in the extremely difficult task of getting through one or more of the very narrow eyes of the needle in section 21 of the Act.

Suppose the master had said to the servant:

'We, of course, appreciate that these agreements into which we have entered ought in the public interest to be disclosed to the registrar, but we hope that the registrar will never find out about them. We propose to ignore out statutory obligation to disclose these agreements. You must agree with us that you will never make any disclosure about them to anyone.'
Suppose that the servant had agreed. I am by no means convinced that any court would do other than regard such an agreement as illegal on the ground that it was clearly contrary to the public interest. I do not think that the law would lend assistance to anyone who is proposing to commit and to continue to commit a clear breach of a statutory duty imposed upon him in the public interest. If such agreements between masters and servants were to be enforced by the courts, it would be of great assistance to those who proposed ignoring their statutory duties. I do not believe that the courts should or would render them any assistance."

Winn L.J. said (pp.411-412):

"It would be perhaps harsh to regard this case as in any degree analogous to that of a gang leader making a contract with his minions, his 'tools,' that they will not 'grass' in advance of the completion of a contemplated bank raid to anyone other than the local police or the Director of Public Prosecutions. Not only is such a hypothetical term absurd but it could not be enforced for obvious reasons of public policy or illegality were the gangster to tell someone other than the police or the Director of Public Prosecutions. I do not desire to burden this judgment with quotations from the judgment of the Court of Appeal in Weld-Blundell v. Stephens. If I had felt that time would be thus usefully employed, I would have drawn attention to the fact that nothing in any of those judgments touches upon the precise point here; all the judgments are certainly open to the construction that the members of the court would have been ready enough to refuse to enforce the agreement had they thought the agreement itself offended against public policy, that being the essential point in the present appeal."

Before proceeding to the next authority I should note a number of matters. Firstly, it is not possible from a reading of the report to ascertain precisely what the nature of the documents taken by the first defendant was. Some indication is perhaps to be obtained from the account of the pleadings which appears at p.398, but the detail of what was said in the documents is not there indicated. I mention this matter because it has an importance when I come to consider one of the submissions made by counsel for Allied Mills. Secondly, the English legislation which was in question did not provide for any offence. Section 6 of the Restrictive Trade Practices Act 1956 provided that that part of the Act in which s.6 appeared applied to any agreement between two or more persons carrying on business within the United Kingdom under which restrictions are accepted in respect of the prices to be charged, quoted or paid for goods. Section 9 provided that every agreement to which "this part of this Act" (s.9 is in that part) applies shall be subject to registration thereunder. Finally, I should go ahead a little to indicate that Initial Services Limited v. Putterill has been referred to in the recent decision of the House of Lords in British Steel Corporation v. Granada Television Limited (8th November, 1980, as yet unreported). Lord Wilberforce said (pp.3-4):

"One final point. There is an important exception to the limitations which may exist upon the right of the media to reveal information otherwise restricted. That is based on what is commonly known as the 'iniquity "rule"'. It extends in fact beyond 'iniquity' to misconduct generally (see Initial Services Ltd. v. Putterill (1968) 1 Q.B. 396). It is recognised that in cases where misconduct exists, publication may legitimately be made even if disclosure involves a breach of confidence such as would normally justify a prohibition against disclosure. It must be emphasised that we are not in this field in the present case; giving the widest extension to the expression 'iniquity' nothing within it is alleged in the present case. The most that it is said the papers reveal is mismanagement and government intervention. Granada has never contended that it had a right to publish in order to reveal 'iniquity'."

The case was also referred to by Lord Fraser (p.30) who quoted, with approval, part of the passage from the judgment of Lord Denning, M.R. which I have quoted. His Lordship also referred to the judgment of Salmon L.J.

It would therefore appear that the decision in Initial Services Limited v. Putterill has received the imprimatur of two of the members of the House of Lords. Lord Salmon was also a member of the Bench in Granada. He dissented but nothing in his judgment suggests that he, at this time, would take a different view of what he had said in Initial Services. Granada is a case to which I shall in due course return after discussing some other authorities.

The next case to which I refer is Butler v. Board of Trade (1971) 1 Ch. 680. After I have discussed that case it will be necessary for me to refer to some earlier authorities referred to by Goff J. (as he was) in his judgment in addition to Gartside v. Outram and Reg. v. Cox and Railton. The earlier authorities are O'Rourke v. Darbyshire (1920) A.C. 581, Ghani v. Jones (1970) 1 Q.B. 693 and Varawa v. Howard Smith & Co. Limited [1910] HCA 11; (1910) 10 C.L.R. 382. Butler v. Board of Trade was a case where, amongst papers at a solicitor's office handed over to a representative of the official receiver of a company in compulsory liquidation, was a copy of a letter written to the plaintiff by the solicitor in which he volunteered a warning to the plaintiff that he might incur serious consequences, which he described, if he did not take care. In criminal proceedings against the plantiff under one of the sections of the Companies Act 1948 the Board of Trade intended to adduce the copy of the letter in evidence. The plaintiff sought the opinion of the court whether there was any equity to prevent the Board of Trade from tendering the copy in evidence in those proceedings on the ground that the original of the letter was privileged and the copy confidential. The Board of Trade contended that since the plaintiff was being charged with criminal offences and the letter was relevant thereto the privilege did not apply. The plaintiff contended that the Board would have to show first that the professional advice given was in furtherance of crime or fraud. It was held by Goff J. that the fact that the letter was relevant to criminal proceedings was not sufficient by itself to destroy the privilege, the correct test to apply being both whether there was a bona fide and reasonably tenable charge of crime or fraud and whether the letter could be shown prima facie to be preparatory to the commission of a crime or fraud. It was further held that on the limited facts before the court the warning in the solicitor's letter should not be regarded as being in preparation for or in furtherance of or as part of any criminal designs on the plaintiff's part and that therefore the letter was privileged and the copy confidential. But, although there had been a breach of confidence, and in such circumstances an innocent recipient of information could be restrained, there were good reasons why it would not be proper for the court to interfere in cases where there was a conflict between the private right of the individual in equity and the duty of the state to prosecute offenders. Accordingly, the recipient being the Board of Trade and the intention being to use the letter in a public prosecution, the court's equitable jurisdiction in confidence would not be exercised and the action was dismissed. Goff J. considered a number of authorities including Cartside v. Outram, Reg. v. Cox and Railton, Weld-Blundell v. Stephens, and O'Rourke v. Darbishire. In the course of his judgment he said (pp.686-687):

"It is submitted on behalf of the defendants, however, that as the plaintiff is charged with criminal offences, and the letter is relevant thereto, which is undoubtedly is, the privilege does not apply. Now, it is clear that a sufficient charge of crime or fraud will in certain circumstances destroy the privilege, but there is a dispute between the parties as to what it is necessary to show for that purpose.
The defendants say that relevance is alone sufficient, and that the position is in effect so stated in note 24/5/9 on p.377 of The Supreme Court Practice, 1970. The plaintiff submits, however, that it is necessary to go further and to show that the professional advice was in furtherance of the crime or fraud, as is said in Phipson on Evidence, 11th ed.(1970) p.251 para.590 and Halsbury's Laws of England, 3rd ed. Vol.10 (1955), p.479, para.877.
As questions of this nature have to be determined on a prima facie basis, often without seeing the documents or knowing what was orally communicated, the two tests will, I think, in many and probably most cases be found in practice to produce the same result because in most cases of relevance the prima facie inference will be that the communication was made in preparation for or in futherance or as part of the criminal or fraudulent prupose. However, the two tests are not the same and in the present case, cannot, I think, possibly produce the "same result. On the information before me the letter was nothing but a warning volunteered - no doubt wisely, but still volunteered - by the solicitor that if her client did not take care he might incur serious consequences, which she described. I cannot regard that on any showing as being in preparation for or in furtherance or as part of any criminal designs on the part of the plaintiff."

His Lordship went on to say that he preferred the narrower view and thought that this was supported by the decision in Reg. v. Cox and Railton and O'Rourke v. Darbishire. There are dicta in what his Lordship has said which would suggest that he thought that for privilege to be lost there had to be established a prima facie case of crime, fraud or, perhaps, other breach of the law.

Nevertheless, relief was refused. Goff J. rested himself upon the following considertions (pp.690-691):

"In my judgment it would not be a right or permissible exercise of the equitable jurisdiction in confidence to make a declaration at the suit of the accused in a public prosecution in effect restraining the Crown from adducing admissible evidence relevant to the crime with which he is charged. It is not necessary for me to decide whether the same result would obtain in the case of a private prosecution, and I expressly leave that point open.
My reasons for the conclusion I have reached are as follows: First, it is clear that if the copy letter were in the hands of a third party I would in restraining him have to except the power of the trial court to subpoena him to produce the letter and his obligation to comply with that order: see per Bankes L.J. in Weld-Blundell v. Stephens. It would be strange if the defendants could subpeona a witness to produce this document yet, having it themselves, not be allowed to tender it in evidence. Secondly, and even more compelling, is the effect of the conflict between the two principles to which I have already referred. "In Elias v. Pasmore (1934) 2 K.B. 164 it was held accordingly by Horridge J. that the police were justified in retaining and using at the trial of Hannington documents belonging to Elias which they had seized irregularly when entering the premises to arrest Hannington. True it is that in Ghani v. Jones Lord Denning M.R. criticised the dictum of Horridge J. as being too wide in that he gave the police a right to use the documents in the trial of any person, but with that qualification Lord Denning accepted what Horridge J. had said. Thus Elias v. Pasmore is authority for the proposition that the right and duty of the police to prosecute offenders prevails over the accused's right of ownership. He cannot demand his own good back. By analogy it seems to me that the interest and duty of the defendants as a department of the state to prosecute offenders under the Companies Act must prevail over the offender's limited proprietary right in equity to restrain a breach of confidence, and here, of course, the doubt suggested by Lord Denning does not arise because the accused and the person entitled to the benefit of the confidence are one and the same. This view of the matter is further supported by Ghani v. Jones itself, and the statement by Lord Denning M.R. at pp.708-709 of the relevant principles, and particularly the second and third, guiding the right of the police to retain and use articles where no man has been arrested or charged and a fortiori where, as here, a criminal prosecution is actually pending. I find some further support for this conclusion in Saull v. Browne (1874) 10 Ch.App.64 and Kerr v. Preston Corporation (1876) 6 Ch.D. 463, which say that in general a court of equity will not interfere with a criminal prosecution, although the question there was one of restraining it altogether."

Insofar as Goff J. has said that for privilege to be lost there must be evidence of a prima facie case of crime or fraud, he ought not to be taken as departing at all from what was said by members of the House of Lords in O'Rourke v. Darbishire, a case to which he not only refers but upon which he relies for the propositions which he has cited. It would seem that the view that he took of Reg. v. Cox and Railton was that there was actual evidence of the commission of a crime because in that case the jury had convicted the accused. But the question arises as to whether the result in Cox and Railton would have been different if, instead of the matter being raised before the Court for Crown Cases Reserved, it had been raised in proceedings of the kind currently in question here prior to the trial of the two accused. In any event the judges in O'Rourke v. Darbishire make it clear that what is meant by a prima facie case is not a prima facie case in the sense in which a magistrate called upon to decide whether an accused person should be committed for trial would use it. For instance, Viscount Finlay said ((1920) A.C. at p.604):

"The appellant also relied on the proposition that no privilege comes into existence with regard to communications made in order to get advice for the purpose of carrying out a fraud.
This is clear law, and, if such guilty purpose was in the client's mind when he sought the solicitor's advice, professional privilege is out of the question. But it is not enough to allege fraud. If the communications to the solicitor were for the purpose of obtaining professional advice, there must be, in order to get rid of privilege, not merely an allegation that they were made for the purpose of getting advice for the commission of a fraud, but there must be something to give colour to the charge. The statement must be made in clear and definite terms, and there must further be some prima facie evidence that it has some foundation in fact. It is with reference to cases of this kind that it "can be correctly said that the Court has a discretion as to ordering inspection of documents. It is obvious that it would be absurd to say that the privilege could be got rid of merely by making a charge of fraud. The Court will exercise its discretion, not merely as to the terms in which the allegation is made, but also as to the surrounding circumstances, for the purpose of seeing whether the charge is made honestly and with sufficient probability of its truth to make it right to disallow the privilege of professional communications. In the present case it seems to me clear that the appellant has not shown such a prima facie case as would make it right to treat the claim of professional privilege as unfounded."

I refer also to what was said by Lord Sumner at pp.613-614, by Lord Parmoor at pp.622-623 and by Lord Wrenbury at pp.632-633.

Butler v. Board of Trade is important in highlighting the fact that although a document may not be one in respect of which a claim for privilege can be overcome, it may nevertheless be retained by the Crown and used in a prosecution. That is how Goff J. resolved the case in favour of the Board of Trade. In doing so he relied, as has been mentioned, on an earlier decision of the Court of Appeal in Ghani v. Jones (1970) 1 Q.B. 693.

Before coming to Ghani v. Jones I should say something of Varawa v. Howard Smith & Co. Limited (supra). There the plaintiff sued the defendant for malicious arrest and for abuse of the process of the court. The plaintiff administered interrogatories to the defendants as to whether the defendants has obtained any advice from the solicitors as to the liability of the plaintiff before they arrested him. It was held that if the arrest was unlawful, the unlawful proceedings did not begin until after the advice had been given, and that as the communication between the defendants and their solicitor was not shown to have been made in furtherance of an illegal object, it was privileged. Griffith C.J. referred to the decision of the Privy Council in Gullivant v. The Attorney General for Victoria (1901) A.C. 196, where at p.200 Lord Halsbury L.C. had said that no court could be called upon to protect communications which are in themselves parts of a criminal or unlawful proceeding. Griffith C.J. continued (p.385):

"The rule is very well illustrated in the case of Reg. v. Cox and Railton, in which the communication stated and put in evidence was a communication made by a solicitor to his client for the purpose of enabling him to carry out an unlawful enterprise. In the present case the supposed communication inquired into is one made by the solicitor before the enterprise was commenced. How can that be said to be part of a criminal r unlawful proceeding? There is nothing criminal or unlawful in a solicitor telling his client that he does not think he has a good cause of action."

It seems to me, with very great respect to his Honour, that his explanation of the decision in Cox and Railton is not strictly accurate. The communication there made was a cummunication by a solicitor, acting in good faith, explaining why it was that a charge could not be given by one of the partners to the other, the partnership still being in existence. It was that letter which no doubt prompted the accused to fabricate a story that the partnership had been dissolved prior to the judgment. But it seems hardly accurate to say, as his Honour has said, that the communication made by the solicitor to his client was a communication for the purpose of enabling him (the client) to carry out an unlawful enterprise. Nevertheless, the view of the case adopted by Griffith C.J. is the same as that adopted by Goff J. in Butler v. Board of Trade. To the same effect as the judgment of Griffith C.J. are the judgments of O'Connor J. (p.387) and Isaacs J. (p.389).

Ghani v. Jones is one of a number of cases referred to in argument dealing with the situation in relation to documents procured by the police otherwise than in the course of the execution of a search warrant or from an accused person at the time of his arrest. The documents in question were passports. They had been procured by the police upon a search, without a warrant, of the plaintiffs' house. Lord Denning M.R. said (pp.708-709):

"What is the principle underlying these instances? We have to consider, on the one hand, the freedom of the individual. His privacy and his possessions are not to be invaded except for the most compelling reasons. "On the other hand, we have to consider the interest of society at large in finding out wrongdoers and repressing crime. Honest citizens should help the police and not hinder them in their efforts to track down criminals. Balancing these interests, I should have thought that, in order to justify the taking of an article, when no man has been arrested or charged, these requisites must be satisfied:
First: The police officers must have reasonable grounds for believing that a serious offence has been committed - so serious that it is of the first importance that the offenders should be caught and brought to justice.
Second: The police officers must have reasonable grounds for believing that the article in question is either the fruit of the crime (as in the case of stolen goods) or is the instrument by which the crime was committed (as in the case of the axe used by the murderer) or is material evidence to prove the commission of the crime (as in the case of the car used by a bank raider or the saucer used by a train robber).
Third: The police officers must have reasonable grounds to believe that the person in possession of it has himself committed the crime, or is implicated in it, or is accessory to it, or at any rate his refusal must be quite unreasonable.
Fourth: The police must not keep the article, nor prevent its removal, for any longer than is reasonably necessary to complete their investigations or preserve it for evidence. It a copy will suffice, it should be made and the original returned. As soon as the case is over, or it is decided not to go on with it, the article should be returned.
Finally: The lawfulness of the conduct of the police must be judged at the time, and not by what happens afterwards.
Tested by these criteria, I do not think the police officers are entitled to hold on to these passports or letters. They may have reasonable grounds for believing that the woman has been murdered. But they have not shown reasonable grounds for believing that these passports and letters are material evidence to prove the commission of the murder. All they say is that they are of 'evidential value,' whatever that may mean. Nor have they shown reasonable grounds for believing that the plaintiffs are in any way implicated in a crime, or accessory to it. In any case, they have held them quite long enough. They have no doubt made photographs of them, and that should suffice."

The emphasis is mine.

Lord Denning's judgment was agreed in by Edmund Davies L.J. (as he was) and Willmer J. (as he was). Lord Denning referred to a number of other authorities including Chic Fashions (West Wales) Limited v. Jones (1968) 2 Q.B. 299 and Elias v. Posmore (1934) 2 K.B. 164.

I have referred to Ghani v. Jones firstly because of the reference which is made to it by Goff J. in Bulter v. Board of Trade and, more importantly, because of the strong reliance placed by counsel for Allied Mills upon the passage from Lord Denning's judgment above cited. To that submission I shall later come.

Two judges sitting at first instance in the High Court of Justice in England have followed the decision of Goff J. in Butler v. Board of Trade. They are Ackner J. (as he was) who followed it in Garfinkel v. Metropolitan Police Commissioner (1972) Crim.L.R. 44, and Swanwick J. who followed it in Frank Truman Limited v. Metropolitan Police Commissioner (1977) 1 Q.B. 952. His Lordship said (p.965):

"The question seems to me to be one of the balance of public policy and of discretion in the exercise of an equitable remedy on the facts and in the circumstances of the particular case. On the one hand, there was here a warrant authorising entry and search for forgeries. Search must involve sorting. The method of sorting was consented to and the documents handed over for the purpose. In the course of the sorting evidence came to light of a crime which the police were already investigating "and for which they had already arrested one of the plaintiffs and interviewed the other, and, in my judgment, the police were acting reasonably. On the other hand, although the police were entitled to search and sort, the documents they found in the third catergory were in the hands of an innocent bailee and were privileged, at least until handed over.
In these circumstances, are the police, on the balance of public policy, entitled to retain the balance of public policy, entitled to retain them and use them as evidence in the prosecution of the crime which was already alleged at the time of finding the documents and charged before there was time to sort them? On the balance, I hold that they are, and I follow the lead of Goff J. and Ackner J. in refusing the relief asked for."

It should be noted that it is not easy from a reading of the report to determine whether the documents which were in question would themselves be evidence of wrong-doing and able to be tendered in the proceedings to be brought.

In Reg. v. Tompkins (1977) 67 C.A.R. 181 the accused was charged with handling stolen goods which included a stereo unit which was idnetified as having certain special characteristics including a loose button. The accused had denied that it had been loose but was confronted in cross-examination with a note he had written to his counsel admitting that the button was loose and that he had glued it back on. The note came into the possession of prosecuting counsel after it had been found lying on the floor of the court. The recorder ruled that the document should not be used in cross-examination. Nevertheless counsel for the prosecution asked one question based on its contents which was whether the appellant had tried to glue the button back on. He admitted that he had and was convicted. The ground of the appeal to the Court of Criminal Appeal was that the use by the prosecution of information obtained in breach of the privilege existing between counsel and his client was contrary to natural justice and that the conviction was unsafe and unsatisfactory. It was held that it was not a breach of natural justice for a perjurer to be confronted with a note in his own handwriting admitting his perjury and written within hours of it - natural justice would seem to demand such an exposure, otherwise gross injustice would have been caused. It was impossible for the court to conclude that the verdict of the jury was unsafe or unsatisfactory. The judgment of the court was delivered by Ormrod L.J. who said (p.184):

"Privilege, in this context, relates only to production of a document; it does not determine its admissibility in evidence. The note, though clearly privileged from production, was admissible in evidence once it was in the possession of the prosecution: Butler v. Board of Trade. Admissibility depends essentially on the relevance of the document; the method by which it has been obtained is irrelevant: Kuruma, Son of Kanui v. R, (1955) A.C.197, per Lord Goddard C.J. at p.203. The judge in a civil case cannot exclude such a document though in criminal proceedings the judge has a limited discretion to exclude evidence, indisputedly admissible, in the interests of justice to the accused (per Lord Goddard C.J.supra). It is therefore for counsel in the first place to decide in his discretion whether or not to use "such a document.
Some complaint is made in this case that counsel for the prosecution did not disclose to his opponent that he was in possession of the note. In the view of the Court that also must be a matter for the discretion of counsel to be exercised in the light of the surrounding circumstances or, at most, a matter of professional ethics. It cannot affect the question of admissibility."

Thus Butler v. Board of Trade and the cases which follow it were impliedly approved by the English Court of Criminal Appeal.

Malone v. Metropolitan Police Commissioner (1980) 1 Q.B. 49 was a case where police seized bank notes (both English and foreign) from a house which a search warrant authorised them to enter. The plaintiff and eight other persons were committed for trial on charges of conspiracy and of handling stolen property but no charge was laid in respect of the money. The police refused to return the money before the trial. The plaintiff commenced an action in detinue and also sought a mandatory injunction ordering the Metropolitan Police Commissioner to deliver up the bank notes. It was held that although there was no general power in the police to retain property lawfully seized which was not the subject of any charge and that the police must justify such retention upon some ascertainable ground, circumstances could arise under which it would form material evidence at the trial so that it would become necessary for it to be produced.

I do not find it necessary to discuss the detail of the reasoning of Stephenson L.J. and Roskill L.J. who were the members of the Court of Appeal who decided the matter. Their judgments contain references to Ghani v. Jones (supra) (which was distinguished) and to Frank Truman Export Limited v. Metropolitan Police Commissioner (supra). However I find it useful to quote a passage from the judgment of Roskill L.J. He said (p.70):

"It seems to me that the line of authorities to which Mr. Serota (counsel for the plaintiff) referred, and to which I do not find it necessary to refer in detail, show that there is no general power in the police, when they have lawfully seized property which is thereafter not the subject of any charge and is clearly shown not to have been stolen, to retain that property as against the person entitled to possession of it against some uncertain future contingency. The police must be able to justify the retention of such property in such circumstances upon some clearly ascertainable ground. To my mind the only question in this case is whether it can be predicted with sufficient certainty that under no circumstances irrespective of the fact that that money was not exhibited in the committal proceedings, will it become necessary to adduce that money in evidence at the trial which starts next month, so that it can now, without risk to the administration of justice, be safely returned to the plaintiff. If it became necessary for the prosecution to adduce that money in evidence, it would obviously gravely hamper the administration of justice if that money had been handed back and spent, so that it was no longer available to be put in evidence whenever required. Whatever Mr. Serota's present instructions are (and, of course, I unreservedly accept that he has received those instructions I have mentioned) as to the course which the plaintiff at present intends to take at the trial, this will be a long trial and it seems to me quite impossible to predict, at this injucture, every turn which that long trial may ultimately take. It is not difficult to envisage circumstances in which it might become highly material for that money to be produced, either on behalf of the prosecution or of the defence, even "though the prosecution do not seek to say that the money itself was stolen and have not so far exhibited it as part of the police officer's evidence. I think, therefore, on this narrow ground the defendant is entitled to retain this money until the conclusion of the criminal proceedings against the plaintiff, and in this respect I venture to disagree with the judge. On this ground I would allow the appeal and discharge the injunction."

In Inland Revenue Commissioners v. Rossminster Limied (1980) 2 W.L.R. 1 revenue officers suspected that a tax fraud had been committed. A senior revenue officer placed information before a circuit judge and obtained search warrants for named revenue officers to search specified premises and seize anything which they had reasonable cause to believe might be required as evidence in proceedings in respect of the fraud. The warrants were issued pursuant to s.20C of the Taxed Management Act 1970. A critical question for determination by the court was whether the warrants were validly issued pursuant to the section. Although there were other subsidiary questions and some of what their Lordships said may be thought to touch upon the present problem, I do not regard the case as helpful in its resolution. It is a case upon its own facts and upon the particular legislation which was involved. I have mentioned the case only because it is a decision of the House of Lords and was much referred to in the argument before me.

That completes the review of the authorities. Upon the basis of it and of the analysis of the legislation earlier undertaken I can now come to the submissions which counsel for Allied Mills made in relation to the question of public policy and reach some conclusions.

The authorities establish that the public interest in the disclosure (to the appropriate authority or perhaps the press) of iniquity will always outweigh the public interest in the preservation of private and confidential information. To the extent that that was not clear beforehand, it has been made clear by the House of Lords in Granada. In addition to the reference to the judgments of Lord Wilberforce and Lord Fraser earlier made (pp.55-56 hereof), I refer to what was said by Viscount Dilhorne (p.10 of the Granada judgment). The public interest in the preservation of the secrecy of confidential communications was the basis upon which British Steel Corporation succeeded in Granada. It was said to be a matter of high public policy. But their Lordships, as I have shown, were careful to except cases of iniquity from the operation of the principle which they enunciated. The words used by Viscount Dilhorne were "some iniquity or crime".

Counsel for Allied Mills did not contend that the law was otherwise. But, as an initial submission, he said that the disclosure of evidence or material which established or tended to establish the breach of trade practices legislation, in particular a breach of a provision of Part IV of the Act in question here, was not the disclosure of an iniquity. No crime or misdeamour was involved. The liability for breach was civil only. The legislature had been careful to distinguish what it had regarded as the more serious infringements of the Act by providing in Part V Division I that they would be misdeamours. Breaches of these provisions involve, except in relation to a breach of s.52, criminal and not civil liability.

In my opinion the cases, particularly Initial Services v. Putterill and Granada, conclude this argument against Allied Mills. Because of the nature of the application dealt with by the Court of Appeal in Initial Services (it was an application to strike out a defence) the views expressed by the judges did not have the same force as would have been the case if it had been a final hearing. But both Lord Wilberforce and Lord Fraser have expressly approved the case, and Viscount Dilhorne distinguished between a crime and an iniquity, thus taking the view that an iniquity embraced more than criminal conduct. Initial Services was a case involving the English trade practices legislation. As in the present case no criminal conduct was involved. But in the court's view Parliament in the United Kingdom had evinced a clear intention that the legislation was of the utmost importance in the public interest. Breach of it, in the eyes of Parliament, militated against the public good. In my judgment Parliament here took no less serious a view of the importance of the legislation from the standpoint of the public interest. It outlawed the various restrictive practices which are dealt with in Part IV believing that they were, unless special circumstances excepted them from the operation of the legislation, to be detrimental to trade and commerce. Heavy penalties were provided for breaches of the relevant provisions. The enforcement of the legislation was facilitated by the enactment of s.155.

Earlier I have reviewed the various provisions of the Act in an attempt to demostrate that they reveal an intention on the part of parliament that they have the utmost public importance. I do not wish to repeat what I have said. I recognise that to decide whether the disclosure of a breach of the legislation amounts to an iniquity involves the making of a value judgment. But it is nt a subjective judgment. It is a judgment based upon the view that ought to be taken of the intended effect of the legislation in question once it has been understood and properly construed. In my opinion a breach of the provisions, whether of Part IV or Part V of the Act, is an iniquity within the rule formulated in Gartside v. Outram and referred to in the later cases including Initial Services and Granada.

In reaching that conclusion I have taken into account the dictum of Viscount Finlay in Weld-Blundell v. Stephens ((1920) A.C. at p.970) earlier cited (p.50 hereof). But his Lordship was concerned with actions for penalties by common informers. There is no suggestion in any of the later authorities that the considerations mentioned by Viscount Finlay warrant the conclusion that any breach of the law which may be punished as the result of a action for penalties, whether brought by a common informer or not, is, because the breach is punishable in that way, not an iniquity for the purpose of the rule.

It was then submitted that notwithstanding that the disclosure of an iniquity might not be restrained if an employee disclosed documents concerning it to a proper authority, the authority had nevertheless to establish (that is plead and prove) that: -

(a) there was prima facie evidence of the iniquity; and

(b) the documents in question themselves disclosed the iniquity relied upon.

In support of the first of these propositions counsel for Allied Mills relied particularly upon Butler v. Board of Trade (supra) and the dictum of Lord Denning M.R. in Ghani v. Jones (supra) set out on pp.64-5 hereof. I have already said what I think Goff J. menat in that context by a prima facie case. In order to reach my conclusion I cited what had been said by Viscount Finlay in O'Rourke v. Darbishire (pp.61-2 hereof). When his Lordship refers to "probability" he ought not to be taken to be speaking of a case which is more probable than not. He is using the word probability in the sense in which it was used and explained by the judges in Kourfos v. Czarnikow Limited (1969) 1 A.C.350 and Beecham Group Limited v. Bristol Laboratories Pty. Limited (1968) 118 C.L.R.618. I refer to the judgment of Deane J. in Transport Workers Union of Australia v. Leon Laidely Pty. Limited (1980) 28 A.L.R.509 at pp.599-600.

The principal documents which are in question in this case are the black diary (Exhibit B), the desk diary pages (Item 7.55 of the schedule to the Commission's affidavit of discovery, part of Exhibit E) and Mr. Matthews' statement (Exhibit 4). The statement, although prepared in consultation with officers of the Commission and for the Commission's purposes, is largely based upon the black diary which was in turn prepared from information written on various sheets of paper, including desk diary pages similar to those in Item 7.55. If evidence were given by Mr. Matthews along the lines of the black diary and the statement, it would be capable of showing, or, to put it another way, it would be some evidence, that Allied Mills entered into an arragnement or understanding of the kind relied upon by the Commission in the principal proceedings. That is not to say that there will not be serious questions about the accuracy and veracity of Mr. Matthews' evidence if the evidence he gives is in accordance with the diary and his statement. From the conduct of Allied Mills' case in the principal proceedings, I would expect Mr. Matthews' evidence to be the subject of serious challenge in cross-examination and, in the event contradiction or innocent explanation by evidence called in Allied Mills' case. Furthermore, if the material in the diary and the statement were the only evidence, one would have to consider very carefully what weight one would attach to it and whether it, standing alone, would result in a finding against Allied Mills. A preliminary question to any so far mentioned is whether all or part of Mr. Matthews' evidence, if given in accordance with his statement, will be admissible against Allied Mills. There are a number of questions not the least of which will be questions concerning Mr. Matthews' authority and the quthority of persons who are said to have had conversations with him to say what is alleged they have said. And, assuming the evidence is led, it will be called initially only against Allied Mills. In due course the further question will arise as to whether it is admissible against any of the other respondents. If it is not admitted against any of them, as well as against Allied Mills, the proceedings may fail against all respondents because the Commission's case is one which depends upon there having been an arrangement or understanding to which at least two (query, all) of the respondents were parties.

But none of the considerations I have mentioned affect the fact that for the purposes for the principle which is here in question the contents of Mr. Matthews' diary and statement establish as against Allied Mills a prima facie case. I do not think it is of consequence that that particular matter has not been pleaded; it is established by evidence which was either led by counsel for Allied Mills or which was not the subject of any objection by him. In my opinion there is much truth in what was said by Goff J. in Butler v. Board of Trade ((1971) 1 Ch. at p.687 - cited at p.58 hereof), namely that questions of this nature have to be determined on a prima facie basis often without seeing the documents or knowing what was orally communicated. In my opinion the black diary and the statement do establish against Allied Mills a prima facie case in the sense in which Goff J. (and Viscount Finlay) used that expression. But it is to be remembered that it is a case which has not been tested in any way and also a case which may not, for the various reasons I have earlier given, ever be established. I have not (and could not have) any opinion whatsoever as to whether it is a case which will eventually be made out even upon a prima facie basis, using the words "prima facie" on this occasion in their more conventional sense.

I should mention at this point that I formed the view, during the hearing of the proceedings, that, because the trial of the principal proceedings is part heard and because documents which are the subject of this claim may not ultimately be tendered in evidence in those proceedings, I should endeavour to look as little as possible at the documents which are in question. Since reserving my decision, I have decided that my earlier view was an inappropriate one. In order for the case properly to be decided it was necessary for me to look at the documents. Accordingly, I asked for them to be returned from the custody of the Commission's solicitor so that I might inspect them. I do not believe that my having done so will advantage or disadvantage any party in the principal proceedings.

For the reasons I have given, I am of opinion that the first submission should be rejected. In reaching that conclusion I have taken into account what Lord Denning M.R. said in Ghani v. Jones (pp.64-5 hereof). It will be remembered that after citing that passage I emphasised certain words. I refer again to that emphasis. What Lord Denning propounded in the passage in question applied firstly to a case where no one had been arrested or charged and secondly to a case where there were not shown to be reasonable grounds for believing that the plaintiffs were in any way implicated in a crime or accessories to it. Subject to the fact that there is here in question no more than a civil liability so that notions of arrest and the charging of a crime are not relevant, this is a very different case. Here proceedings have been taken against Allied Mills and there are, upon the basis of what I have earlier said, reasonable grounds for believing that Allied Mills may be implicated in a breach of the Act.

Then, is it correct to say that each of the documents in question must disclose that iniquity. I was at one stage inclined to regard the diary and the statement as being in a different category from documents which have been the subject of consideration in any of the cases to which I have referred. That was because the documents purported to record accounts of conversations with and the conduct of the various persons who are referred to therein. But Mr. Matthews prepared the diary for use by his employer. He had, in my opinion, implied authority to prepare it. He was the company's Victorian manager. His purpose in preparing and compiling the diary was to endeavour to persuade the company's management to change its course of action. I refer to his evidence quoted on p.15 hereof. It is true that the statement was prepared for the Commission and not for his employer, but it is based upon the entries in the diary and, as earlier said, can stand in no different position from the diary itself.

It follows, however, from what is contained in the black diary that if it is necessary that a document, before a claim to recover it as a confidential document will be defeated, must itself disclose iniquity, the Commission has established to the necessary extent that it does. The balance of the documents I do not believe to be in that category. The documents are the documents comprised in exhibits E and F. But the Commission wishes to retain the majority of those documents either as evidence relevant to the issues in the principal proceedings to be tendered along with the other evidence in the case or for use in the cross-examination of witnesses, particularly those to be called by Allied Mills. Its judgment that the documents in exhibit E are relevant to the issues in the main case is verified by Mr. Conlan's oath made at the time he swore the afidavit of discovery.

Certainly Goff J. thought that only documents which themselves disclosed an iniquity were within the inquity rule. His view in that respect was followed by Ackner and Swanwick JJ. in the cases earlier cited and by the English Court of Criminal Appeal. But he thought, and the other judges agreed, that there was another basis upon which the appropriate authority who had decided to prosecute the case was entitled to keep the documents. It was submitted by counsel for Allied Mills that since the decision of the House of Lords in Granada the decision of Goff J. and those who followed him should no longer be regarded as sound. The only exception made by their Lordships in Granada was as to documents which fell within the iniquity rule. But their Lordships were not dealing with cases of the kind dealt with in Butler v. Board of Trade and the other cases. They were not concerned with the question which arises where a proper authority is conducting a prosecution for an offence which, if not criminal, is, in the view of parliament, against the public interest. No question of any prosecution for any offence could possibly have arisen in Granada which was a case concerning the extent to which the media were entitled to protect their confidential sources of information. It would seem surprising to me if the law were such as to compel a prosecutor in the position of the Commission here to return documents which might be evidence, or at least relevant to an issue in the prosecution of the person charged, prior to the completion of the prosecution. That is particularly so where, as here, the purpose of the claimant is to recover the documents, not for the purpose of preventing their disclosure commercially to competitors or customers, but to hamper the prosecution which is being brought. A substantial degree of protection can, as I have earlier said, be afforded by the making of an order under s.50 of the Federal Court of Australia Act 1976, or, if the case were in a court which did not have that express power, by the making of an order under powers which exist by reason of the common law. These considerations point strongly, in my opinion, to the alternative basis relied upon by Goff J. and those who followed him as providing a sound reason for refusing relief of the kind here claimed. It is to be emphasised that that relief will usually be refused only in a case where there is found to be some prima facie evidence of the commission of a breach of the law which is against the public interest generally and in a situation where an identifiable person has been or is to be proceeded against for that breach. It is not a case of allowing the Commission, or for that matter any prosecutor, simply to allege without any basis for it that there has been or may have been a breach of the law.

There is sometimes a question of whether documents which a prosecutor wishes to retain have come into his possession lawfully or unlawfully. The Rossminster case was a case where the real issue was whether the documents had come into the possession of the taxation authorities pursuant to a warrant which was lawfully issued. As earlier mentioned counsel for Allied Mills submitted that here the documents were not lawfully in the possession of the Commission because they were confidential documents held by the Commission against the will of Allied Mills. In his submission the only lawful way that such documents could be obtained was by the issue of a valid notice under s.155 of the Act. I have already rejected that submission. I rejected it because the public interest considerations with which I have earlier dealt indicate to me that this was not the intention of parliament. The Commission is charged with the administration of the Act. The Commission is an agency or emanation of the Crown. The provisions of s.155 ought to be regarded as provisions the better to enable or empower the Commission to carry out its task of seeing to it that the provisions of the Act, and thus the will of parliament, are obeyed. It may be that a person such as Allied Mills has not the same protection if its documents reach the hands of the Commission otherwise than as the result of its consent or the issue of a notice under the section. But it would, in my opinion, defeat the consequences of the public policy considerations to which I have referred if, in the event that a breach of the law were disclosed by a member of the staff of a company, it could nevertheless successfully claim an injunction to prevent the use of the documents and information which had come into the Commission's hands, and which the Commission sought to use in support of a prosecution. It is not suggested in the present case that Mr. Matthews could not lawfully give information to the Commission, notwithstanding that that information might itself be confidential. Why should documents stand in any different position? In my opinion the Commission's retention of the documents is lawful for all the earlier reasons I have given. The fact that it did not obtain them with Allied Mills' consent nor as a result of a s.155 notice can make no difference to that conclusion. My view in that regard makes it unnecessary for me to consider whether Allied Mills would be entitled to the relief which it seeks if the Commission's retention of the documents had been unlawful ab initio.

For the reasons I have given I am of opinion that the causes of action based upon breach of confidence and inducing breach of contract must fail. It remains to consider the question of copyright.

Section 183 of the Copyright Act provides that the copyright in a work is not infringed by the Commonwealth or a State, or by a person authorised in writing by the Commonwealth or a State, doing any acts comprised in the copyright if the acts are done for the services of the Commonwealth or State. As a matter of precaution the Commission obtained an authority from the Commonwealth to use the various documents. But I have held that the Commission is an agency or emanation of the Crown. The authority was not therefore necessary. I am satisfied that the use to which the Commission has put the documents or to which it will put them in the future has been or will be for the services of the Commonwealth. The claim based on breach of copyright therefore fails. It is unnecessary, in those circumstances, to mention a number of other submissions that were made by counsel in relation to the copyright claim.

For the reasons I have given I have reached the conclusion that the claim made by Allied Mills should be rejected. I would be prepared, however, to consider the making of an order directing the return of the documents which the Commission offered to return during the proceedings (see p.3 hereof). That is a matter which can be considered when the matter is in the list for short minutes.

I propose to stand the matter over for a short time to enable counsel to consider what I have said. When the matter is again in the list I shall deal with the question of costs. Counsel for the Commission are directed to bring in short minutes of the orders which they consider appropriate to be made.