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Court of Criminal Appeal 6 November 2008

NSW Food Authority v Nutricia Australia Pty Ltd

[2008] NSWCCA 252

Also reported as (2008) 72 NSWLR 456
Other
PROCEDURE RULES OF COURT STATUTORY INTERPRETATION CLEAR STATEMENT PRINCIPLE SECTION 37 (1)(O) AND (Q) FOOD ACT 2003 PROCEDURE

Citation: NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252
Court: NSW Court of Criminal Appeal
Date: 6 November 2008
Judge(s): Spigelman CJ; Hidden J; Latham J

Background

The NSW Food Authority commenced criminal proceedings against a food manufacturer (the respondent company) for alleged contraventions of the Food Act 2003 relating to the sale of certain infant and toddler products to a major supermarket chain. While those proceedings were on foot, the Authority also investigated potential further offences involving sales to other retailers.

The Authority issued six statutory notices to the respondent under section 37 of the Food Act 2003. Those notices required the company to answer interrogatories (formal written questions) and produce a range of documents. Two of the notices expressly stated that the information sought was relevant to the charges already before the court. The other four related to sales to other retailers or did not specify the recipient, and contained express or implied statements that answers would not be used in the existing proceedings.

In the Supreme Court, James J set aside the two notices that were directly linked to the pending charges, finding they amounted to an improper use of statutory powers. His Honour declined to set aside the remaining four. Both parties sought a stated case to the Court of Criminal Appeal on a series of questions about the legality of the notices and the court's power to order interrogatories in criminal proceedings.

  • Whether Part 75 rule 11 of the Supreme Court Rules 1970 permitted a court to order interrogatories in criminal proceedings
  • Whether Parliament's failure to incorporate specific civil interrogatory provisions into the criminal procedure rules was significant
  • Whether the exercise of statutory powers under section 37(1)(o) and (q) of the Food Act 2003 to compel an accused to answer questions and produce documents, while criminal proceedings were on foot, could amount to a contempt of court
  • Whether a "clear statement" from Parliament is required before a statute can be read as authorising steps that compel an accused to provide information for use in proceedings against them
  • Whether the doctrine of derivative use immunity was sufficient to prevent a contempt finding in relation to the four notices that did not expressly reference the pending charges
  • Whether James J erred in the factual findings that led him to set aside two notices but not the remaining four

Decision

On interrogatories in criminal proceedings: The Court held unanimously that Part 75 rule 11 of the Supreme Court Rules 1970 does not permit a court to order interrogatories in criminal proceedings. Spigelman CJ, with whom Hidden J and Latham J agreed, applied the principle that any abridgement of the accusatory system requires a clear parliamentary statement. No such statement existed here, and the failure to incorporate the relevant civil procedure provisions into the criminal context was telling.

On the "clear statement" principle and contempt: The Court confirmed that before a statute can be construed as authorising conduct that compels an accused to provide information for the purposes of proceedings against them, Parliament must make its intention unambiguously clear. The integrity of the criminal justice system demands no less. Section 37 of the Food Act 2003 did not satisfy that requirement in relation to the two notices directly tied to the pending charges, which James J had correctly set aside.

On the four remaining notices: The Court found no error of law in James J's approach to the four notices relating to sales to other retailers. His Honour had applied the correct legal test, drawn from the Federal Court's reasoning in ASIC v Elm Financial Services, which asks whether the statutory power was exercised for the sole or dominant purpose of obtaining evidence so as to confer an advantage not otherwise available. On the facts, the degree of connection between those notices and the extant proceedings was insufficient to constitute contempt, particularly where only derivative use of the information arose. Questions of fact and degree governed the outcome, and no reviewable error of law was identified.

Overall result: All seven questions in the stated case were answered "No," affirming James J's findings in substance and confirming the limits of both the court's procedural powers and the Authority's investigative powers during active criminal proceedings.

Orders Made

  • All seven questions on the Stated Case answered: No.

Key Takeaways

  • The Court of Criminal Appeal confirmed that Part 75 rule 11 of the Supreme Court Rules 1970 does not authorise orders for interrogatories in criminal proceedings. The accusatory system is not displaced by procedural rules that lack an explicit criminal application.
  • A clear parliamentary statement is required before a statute will be construed as authorising the compulsion of an accused to furnish information for use in proceedings against them. General investigatory powers do not automatically carry that authority once criminal charges are laid.
  • Where a regulatory authority exercises statutory compulsion powers while criminal proceedings are on foot, whether that exercise constitutes a contempt of court turns on whether the dominant purpose is to gain an evidential advantage not otherwise available. The mere relevance of sought information to existing charges does not, by itself, establish contempt.
  • Derivative use protections (where answers cannot be directly used in proceedings but may lead to other evidence) are relevant to, but not necessarily determinative of, whether contempt arises. The degree of connection between the investigation and the active proceedings remains critical.
  • Findings about the purpose and effect of particular notices are primarily factual. The Court of Criminal Appeal on a stated case will not interfere unless an error of law is identified in the process of fact-finding.

Legislation and Cases Referenced

Legislation:
- Food Act 2003 (NSW), ss 21, 37(1)(o) and (q)
- Supreme Court Rules 1970 (NSW), Part 75, rule 11
- Uniform Civil Procedure Rules 2005 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5AE
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1965 (NSW)
- Australian Securities and Investments Commission Act 2001 (Cth)
- Corporations Act 2001 (Cth)
- Trade Practices Act 1974 (Cth)

Key Cases:
- Authorised Officer Christine Tumney (NSW Food Authority) v Nutricia Australia Pty Ltd [2007] NSWSC 1215 (decision below)
- Australian Securities and Investments Commission v Elm Financial Services Pty Ltd [2004] NSWSC 859; (2004) 186 FLR 295
- Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543
- Coco v The Queen (1994) 179 CLR 427
- Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477
- Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328
- Sorby v The Commonwealth (1983) 152 CLR 281
- Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138
- Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129
- Bropho v Western Australia (1990) 171 CLR 1
- Potter v Minahan (1908) 7 CLR 277