Re Walter Korczynski v Quik Foods Pty Ltd; James Arthur Daemar; Otto Erhard Sickinger [1984] FCA 119; 199-214; 215-221 of 1983 Trade Practices (1984) Atpr Para 40-456 /; 54 ALR 278 (3 May 1984)

FEDERAL COURT OF AUSTRALIA

Re: WALTER KORCZYNSKI
And: QUIK FOODS PTY. LTD.; JAMES ARTHUR DAEMAR; OTTO ERHARD SICKINGER
Nos. VG183-198; 199-214; 215-221 of 1983
Trade Practices
(1984) ATPR para 40-456 / 54 ALR 278

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Keely J.

CATCHWORDS

TRADE PRACTICES - prosecutions for offences consisting of contraventions of s. 59(2) of the Trade Practices Act 1974 - whether proceedings instituted with consent of "the Minister" - whether instituted with the consent of "a person" authorised by the Minister to give such consents - whether prosecutor's application for case stated should be granted.

Trade Practices Act 1974 - ss. 59(2), 79, 163(4)(b)

Acts Interpretation Act - ss. 17(i), 22(a)

Crimes Act - ss. 5, 21

HEARING

MELBOURNE
3:5:1984

DECISION

Walter Korczynski laid sixteen informations alleging that Quik Foods Pty. Ltd. (the defendant company) committed offences against s. 79(1) of the Trade Practices Act (the Act) by making statements that were misleading in a material particular in contravention of s. 59(2) of the Act. He also laid sixteen informations against James Arthur Daemar, alleging that he had been "indirectly knowingly concerned in the commission of" each of the sixteen offences allegedly committed by the defendant company, and a further seven informations against Otto Erhard Sickinger alleging that he had been "directly knowingly concerned in the commission of" seven of the sixteen offences allegedly committed by the defendant company.

The Commonwealth of Australia Gazette No. S.47 of 11 March, 1983 notified the appointment of Senator Gareth John Evans to hold the office of Attorney-General and to administer the Department of State connected with that office. The same Gazette notified the appointment of Mr. Barry Cohen to hold the office of Minister of State for Home Affairs and Environment.

On 18 October, 1983, before the laying of any of those informations, Mr. Barry Cohen signed a document purporting to consent to the institution of proceedings against the defendant company, Mr. Daemar and Mr. Sickinger. In that document Mr. Cohen described himself as "Barry Cohen, Minister of State for Home Affairs and Environment as the person authorised by Gareth John Evans Attorney-General of Australia to give consent, for the purposes of paragraph 163(4)(b) of the Trade Practices Act 1974 . . to the institution of proceedings in respect of offences against Part V of the Act". At the hearing the defendant company was not represented and a plea of "not guilty" was entered. Mr. Tracey, of counsel, appeared for Mr. Daemar and Mrs. Crennan, of counsel, appeared for Mr. Sickinger, pleas of "not guilty" being entered in respect of all informations.

Section 163(4)(b) of the Act provides that :-

"(4) Proceedings before the Court in accordance with this section -

. . .

(b) shall not be instituted except with the consent in writing of the Minister or of a person authorized by the Minister, by writing under his hand, to give such consents."

Mr. Tracey and Mrs. Crennan both submitted that the proceedings are not properly before the Court because the document purporting to contain the consent to the institution of the proceedings was not given by "a person authorized by the Minister" within the meaning of s.163(4)(b).

They submitted that in s. 163(4)(b) the words "a person" referred to a natural person. Counsel for both defendants relied upon s. 22(a) of the Acts Interpretation Act 1901 which provides that :-

"In any Act, unless the contrary intention appears -

(a) "Person" and "party" shall include a body politic or corporate as well as an individual;"

It was submitted that in the light of that provision the words "a person authorized by the Minister", appearing in s. 163(4)(b) of the Act, must be construed as meaning a natural person as distinct from an office holder. Some reliance was placed upon the importance of the power to be conferred upon the person by the authority given by writing under the hand of the Minister. In this connection the object of the sub-section was referred to by a Full Court in Traveland Pty. Ltd. v Doherty [1982] FCA 81; (1982) 41 ALR 563 at 568 where Bowen C.J., Deane and Toohey JJ. said :-

"The object of the requirement in s. 163(4), that a prosecution shall not be instituted without the designated consent, is to protect the individual or corporation in danger of being charged, by ensuring that a prosecution will only be instituted if the Minister (or, where appropriate, his delegate) considers that it should. Consistently with that object, the requirements of s. 163(4) will not be satisfied unless the Minister has in truth consented to the proceedings in question."

When regard is had to the purpose and the importance of s. 163(4)(b) (cf. Traveland, supra, and R. v Cain (1976) 1 Q.B. 496 at 502 as to the duty of the Attorney-General to "consider the general circumstances of the case", before giving consent), in my opinion the sub-section did not confer upon the Minister the power to "authorize" the giving of consents by office holders - whoever they might be from time to time. The identity of those future office holders would necessarily be unknown at the time of giving the authority and those (future) office holders might well be persons not known by the relevant Minister. In my opinion s. 163(4)(b) required that the persons authorized be named persons.

Mr. Finkelstein, of counsel, who appeared on behalf of the prosecutor, accepted that it was not open to the Minister under s. 163(4)(b) to authorize whatever person holds the office of Minister of State for Home Affairs and Environment from time to time. However, he submitted that the document signed by the Attorney-General, properly construed, did not do so; in his submission it authorized Mr. Barry Cohen who at the time (10 April, 1983) held that Ministerial Office.

The document signed by the Attorney-General, published in the Commonwealth of Australia Gazette No. S.129 of 9 April, 1984, was in the following terms :-

"Trade Practices Act 1974

Authority to Give Consent

I, Gareth John Evans, Attorney-General of Australia hereby authorise the Minister of State for Home Affairs and Environment to give consent, for the purposes of paragraph 163(4)(b) of the Trade Practices Act 1974, to the institution of proceedings in respect of offences against Part V of the Trade Practices Act 1974.

Dated this 10th day of April 1983.
Gareth Evans
Attorney-General"

The essential basis of the submission by Mr. Tracey and Mrs. Crennan is that that document did not bring about the result that Mr. Barry Cohen became "a person authorized by the Minister" because it did not constitute an authorization by the Minister of "a person" as required by s. 163(4)(b) of the Act; instead it purported to "authorise the Minister of State for Home Affairs and Environment to give consent . . . to the institution of proceedings . . .". It was submitted that those words did not authorize "a person" (as required by the sub-section) but instead purported to authorize the holder, from time to time, of the office of "the Minister of State for Home Affairs and Environment" (cf. s. 64 of the Constitution). Both defence counsel submitted that the words "hereby authorise the Minister of State for Home Affairs and Environment" could not properly be construed as meaning "hereby authorise Mr. Barry Cohen".

If the document was intended (as submitted on behalf of the presoecutor) to authorize only Mr. Cohen and to exclude from the authorization all other holders of the office of "the Minister of State for Home Affairs and Environment" it would have been easy to simply say so, i.e. to insert the name "Mr. Barry Cohen" instead of using the words "the Minister of State for Home Affairs and Environment". I consider that that course would have been followed had the Attorney-General intended to authorize Mr. Barry Cohen as distinct from intending to authorize the holder, from time to time, of the office of Minister of State for Home Affairs and Environment. In my opinion the document exhibits an intention to confer the authority upon not only the holder of that office at the time of the authority (10 April, 1983) but also upon any subsequent holder of that office - subject to the power of the Attorney-General to later revoke the authority.

In the course of his address, Mr. Finkelstein submitted that, as Mr. Barry Cohen was the Minister of State for Home Affairs and Environment on 10 April, 1983 the document authorized Mr. Cohen (as a person, not as an office holder) and that if Mr. Cohen ceased to be the Minister of State for Home Affairs and Environment (or ceased to be a member of Parliament) he would still be "authorized", under the authority granted by the Attorney-General to him to give his "consent in writing". However, he also submitted, somewhat tentatively, as a possible alternative, that the authority given to Mr. Cohen was "for so long as he remains the Minister". I am unable to uphold that submission. Had the authority named Mr. Cohen doubtless that result would have followed. However, by failing to name him and inserting instead the name of the office which he held, in my opinion, the document was intended to confer the authority upon the holder of the office at any relevant time.

It was submitted by Mr. Finkelstein, as an alternative, that Mr. Cohen was "the Minister" within the meaning of those words appearing in s. 163(4)(b) i.e. for the purpose of giving "consent in writing" to the institution of the present proceedings. The basis of this submission was that the "administrative arrangements ordered by His Excellency the Governor-General" (notified in the Commonwealth Government Gazette S.46, dated 11 March, 1983) provided that "the Trade Practices Act 1974 Part V" was an enactment "administered by the Minister of State" for Home Affairs and Environment i.e. Mr. Cohen.

Mr. Finkelstein submitted that the "administration" by Mr. Cohen of Part V of the Act included the enforcement of Part V by the institution of prosecutions for those offences which consisted of contraventions of sections contained in Part V (including s. 59(2)). He submitted that it carried with it "the power to consent to prosecutions under s. 163"; reference was made to sub-section 17(i) of the Acts Interpretation Act 1901. On this alternative submission "the Minister" in s. 163(4)(b) might be any one of three Ministers of State - depending on whether the alleged offences related to a contravention of Part V (in which case it would be the Minister of State for Home Affairs and Environment), of Part X (the Minister of State for Transport) or of all other Parts of the Act (the Attorney-General).

The offences alleged in the present proceedings, are offences against s. 79 of the Act. Section 59(2) does not itself create an offence but s. 79 provides that a "person who contravenes a provision of Part V (including s. 59(2)) is guilty of an offence punishable on conviction". Section 79 appears in Part VI of the Act. Section 163(4)(b) appears in Part XII of the Act. I am unable to uphold Mr. Finkelstein's submission that Mr. Cohen's function as a Minister, in administering Part V of the Act, included the function of deciding, under s. 163(4)(b), a section contained in Part XII of the Act, whether to consent to the institution of proceedings for offences against s. 79 (in Part VI of the Act) where those proceedings are in respect of contraventions of s. 59(2).

An application was made by the prosecution that a case be stated, under s. 25(6) of the Federal Court of Australia Act 1976, for the consideration of a Full Court. Mr. Finkelstein said that:-

". . . it is for this reason . . . anything that constitutes an acquittal for these offences means that the prosecutor has no right of appeal to the Full Court of this Court so that if your Honour were to rule adversely to the prosecutor in submissions that have been made in support of the validity of the authority then that would end the matter so far as the prosecutor is concerned and presumably then would mean that all other prosecutions that have been instituted under this form of authority would suffer the same fate . . "

The statement that "all other prosecutions that have been instituted under this form of authority would suffer the same fate" would, in my view, only prove to be correct if the Judge hearing such cases agreed with the conclusions which I have expressed. If he did not then he would give effect to his own opinion or, if he had doubts in the matter, he might state a case to a Full Court.

After referring to s. 21 of the Crimes Act 1914, which prescribes the times within which a prosecution in respect of offences may be commenced, Mr. Finkelstein continued:-

". . . it is of some moment to the prosecutor that the point be determined by a Full Court of this Court if it can be so determined. Now it could get to a Full Court if your Honour were to rule in favour of the prosecution, then, of course, my friend has the right to appeal against that, so it could end up in the Full Court, but it certainly cannot end up in the Full Court if your Honour were to rule in favour of the submissions made by my learned friend and contrary to what my submissions have been, that would then end the matter and it is a matter, as I have said, of great importance, not only in this case but in other cases and for other legislation and one might even say that if one were looking for a special leave point to go to the High Court because the matter is of such wide importance, this is one where one would expect to get leave for as a matter of public importance."

(Reference was made to the decision of a Full Court in Thompson v Mastertouch T.V. Pty. Ltd. [1978] FCA 24; (1978) 19 ALR 547).

At a later stage Mr. Finkelstein said that the application for a case stated should be granted because the question of whether the proceedings had been "authorized" was a novel point, a difficult point and one of great importance. There is nothing novel in the question whether the prosecution has been instituted in accordance with s. 163(4)(b) - although it may be that the wording of the authority signed by the Attorney-General is novel (cf. Bird v Colonial Spark Plugs Proprietary Limited [1942] HCA 11; (1942) 66 C.L.R. 43 at p. 46 per Starke J.:-

"The Solicitor-General then authorized the Deputy Crown Solicitor, in writing, to consent to the prosecution, which, so far as material, was in these words :- I, the Solicitor-General of the Commonwealth of Australia, Hereby Authorize Francis Felix Clausen, Deputy Crown Solicitor for the State of Victoria, to consent to the summary prosecution of the offence against the first-mentioned Act . . ")

Nor does it appear to be a point of any real difficulty. It is essentially a question of the construction of a document. The importance of the matter to the prosecution must, of course, be balanced against the rights of the defendants to have the informations heard and determined. They should not be prejudiced by the desire of the prosecution to have the benefit of an authoritative decision by a Full Court in the matter.

It was plain that the application for a case stated was not related to any need for further research on the question of law involved - with a view to the presentation of a fuller argument upon the matter to a Full Court. The prosecution was given notice at the rising of the Court last Monday of the submission that would be advanced by defence counsel. Further, on the following day it heard the full argument advanced by them and the hearing was adjourned at the request of the prosecution to enable research to be carried out. Yesterday, on being offered further time for research on the matter Mr. Finkelstein said that it had been decided not to ask for further time "because . . quite a number of people (who) in the last 24 hours or so have been trying to discover authorities that if they exist bear upon the question and nobody has been able to do that . . ".

In all the circumstances I am not satisfied that the application for a case stated should be granted.

As s. 163(4)(b) provides that the present proceedings "shall not be instituted except with the consent in writing of the Minister or of a person authorized by the Minister" and the person purporting to give consent was not so authorized, it follows that the proceedings should not have been instituted. The form of order used by Brennan J. in Gilmour v Midways Springwood Pty. Ltd. (1980) 33 ALR 605 at 608 was to dismiss the informations. Accordingly the thirty-nine informations must be dismissed.