Adelaide Brighton Cement Ltd (ACN 007 870 199) v Wong

3 Section 31A of the Federal Court of Australia Act provides, relevantly: "(2) The Court may give judgment for one party against another in relation to the whole or any part of the proceeding if: (a) The first party is defending the proceeding or that part of the proceeding; and (b) The Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. (4) This section does not limit any powers that the Court has apart from this section." 4 Although the focus of Adelaide Brighton Cement's submissions was s 31A, the company relied in the alternative on O 20 r 5(1)(b) of the Federal Court Rules and sought an order that paragraphs 16-28 of the cross-claim be dismissed or permanently stayed, and, in the further alternative, it relied on O 11 r 16(a) and (b) and sought an order that paragraphs 16-28 of the cross-claim be struck out. 5 The application by Adelaide Brighton Cement was supported by an affidavit which annexed a consultancy agreement between the company and Mr Wong dated 2 December 2002, and correspondence which has passed between solicitors for Adelaide Brighton Cement and solicitors for Mr Wong.

The cross-claim 6 It is necessary for me to refer to Mr Wong's application in the proceeding when it was issued in the Queensland District Registry because in what is now his cross claim he claims the relief set out in the application. It is also necessary for me to refer to the cross-claim as a whole even though summary judgment, or an order for striking out is sought only in relation to paragraphs 16-28 inclusive. 7 The application provides, relevantly: "Application under the Trade Practices Act 1974 (Cth) section 45, 47, 51A, 52, 80 and 87, and for declarations that an agreement is unenforceable at common law as being in restraint of trade. A. DETAILS OF CLAIM On the grounds stated in the accompanying statement of claim, the applicant claims: 1. An order restraining the respondent from continuing to engage in the conduct as alleged in the statement of claim by which the respondent has: (a) contravened, or attempted to contravene s 45(2)(b) of the Trade Practices Act 1974 (Cth) ("the Act"); (b) engaged in the practice of exclusive dealing contrary to s 47(1) of the Act. 2. A declaration that the provisions of the Restraint Instrument and the Restraint of Trade Clause as referred to in the statement of claim are unenforceable, void and of no effect. 3. An order restraining the respondent from giving effect to the provisions of the Restraint Instrument and the Restraint of Trade Clause as referred to in the statement of claim. 4. Such further or other orders, directions or relief (whether pursuant to the provisions of ss 80 and 87 of the Act or otherwise) as the Court deems appropriate." 8 In effect, Mr Wong makes claims for relief based on the common law doctrine of restraint of trade and on contraventions or attempted contraventions of sections in Pt IV of the Trade Practices Act 1974 (Cth) ("TPA"). 9 I turn now to examine the allegations in the cross-claim. It is alleged that Mr Wong is the sole director, company secretary and a shareholder of Global Cement Australia Pty Ltd ("CGA") which is a company incorporated according to the law in the State of Queensland. At all times GCA was managed and directed by Mr Wong and was a body corporate related to him within s 4D(2) of the TPA. It is alleged that it was dependent upon Mr Wong for its ability to carry on business. 10 It is alleged that before December 2002 GCA and the applicant through GCA were in the business of importing bulk cement into Australia through ports at Port Hedland, Broome, Brisbane and Mackay, were about to expand the bulk cement importation business to include importation through Berrimah in the Northern Territory, were the only importer of bulk cement into Australia, were in the business of the sale within Australia of bulk cement, that is, cement sold in quantities of not less than 20 tonnes to buyers in the northern part of Western Australia from Karratha to Wyndham, Queensland and northern New South Wales, and were about to expand the business of the sale of bulk cement to Darwin, Alice Springs, Tennant Creek and Gove. 11 It is alleged that Adelaide Brighton Cement is a company duly incorporated according to the law in South Australia, a corporation duly registered under the Corporations Act 2001 (Cth) and a corporation within the meaning of the TPA. At all times, Adelaide Brighton Cement was related to Cockburn Cement Australia Ltd ("CCL"), Northern Cement Limited ("NCL"), Adelaide Brighton Limited ("ABL") and Sunstate Cement Limited ("SCL") and it is alleged that those companies were related companies to Adelaide Brighton Cement within the meaning of s 4A of the TPA. It is alleged that at all times Adelaide Brighton Cement and CCL, NCL and SCL were in the business of manufacturing for supply within Australia bulk cement and the sale within Australia of bulk cement to customers, including customers in the locations within which CGA and the applicant through CGA sold bulk cement. 12 It is alleged that there are seven different geographical markets for the sale of bulk cement to buyers. It is alleged that before December 2002 GCA and Mr Wong through GCA were competing with Adelaide Brighton Cement and its related companies as the supplier of bulk cement in six of the markets and were preparing to enter into competition with Adelaide Brighton Cement or its related company NCL in relation to the seventh market 13 It is alleged that on or about 2 December 2002 Mr Wong, GCA, Adelaide Brighton Cement, CCL and NCL made "an agreement, or alternatively entered into an arrangement or understanding ("Takeover Agreement"), providing, inter alia, for the acquisition of importation, storage and distribution equipment, property and other assets from GCA ("the GCA Bulk Cement Business Assets") and for [Mr Wong] to act as [Adelaide Brighton Cement's] consultant". In order to effect the Takeover Agreement, the parties "variously and contemporaneously" executed a series of instruments and those instruments are referred to as the "Takeover Instruments". The instruments which are referred to in the cross-claim are instruments for the sale of assets in various geographical locations, an agreement for the sale of fly ash or cement or a combination thereof, an equipment lease and a consultancy agreement between Mr Wong and Adelaide Brighton Cement for a term of five years (which included the right of Adelaide Brighton Cement to extend the term for a further term of two years). The consultancy agreement, which is central to the present application, is referred to as the "Restraint Instrument". The key clauses in the consultancy agreement are pleaded in paragraph 11 of the cross-claim and that paragraph is in the following terms: "11. The Takeover Agreement by the Restraint Instrument contained the following express terms: (a) Clause 3.5(a) 'It is a condition of the appointment of the Consultant that, subject to clause 3.5(b), the Consultant will not, during the Term: (i) whether in his own right; or (ii) directly or indirectly in any capacity (including as director, officer or shareholder of a company, a partner of a partnership, an employee or a consultant), for or on behalf of any other person, undertake or be involved in any way with: (iii) the importation into Australia of bulk or bagged cement or cementitious products; or (iv) the sale within Australia of bulk or bagged cement or cementitious products that has or have been imported from outside Australia.' (the "Restraint of Trade Clause") (b) Clause 3.1 'ABCL (the respondent) engages the Consultant to act for it exclusively during the Term in the provision of the Services.' (c) Clause 3.4 'The Consultant accepts his appointment to act exclusively for ABCL for the purposes described in clause 3.1 and in accordance with clauses 3.2 and 3.3.' (d) Clause 4.7 (a) 'An Annual Payment referred to in any of clauses 4.2 to 4.6 inclusive will only be payable to the Consultant if: (i) the Consultant has complied with each and every one of his obligations under this Agreement during the preceding 12 month period; and (ii) the Equipment Lease has not been terminated. (b) If at any time: (i) the Consultant fails to comply with any one or more of his obligations under this Agreement (including, in particular, those in clause 3.5(a)); (ii) the provisions of clause 3.5(a) are found to be unenforceable for any reasons; or (iii) the Equipment Lease has been terminated as a result of the default of GCA, then: (iv) ABCL will have no further obligation to pay the Consultant any Annual payment which, at that time, has not been paid to the Consultant under any of clauses 4.2 to 4.6 inclusive; (v) The Consultant must, upon demand by ABCL, immediately repay to ABCL the full amount of all Annual Payments (if any) that have already been received by the Consultant from ABCL pursuant to any of clauses 4.2 to 4.6 inclusive; (vi) Except where the Equipment Lease has already been lawfully terminated, ABCL may, at any time thereafter, terminate the Equipment Lease; and (vii) Except where the Cement and Fly Ash Supply Agreement has already been lawfully terminated, ABCL may, at any time thereafter, terminate the Cement and Fly Ash Supply Agreement.' (e) Clause 11 'The Consultant is an independent contractor, and nothing in this Agreement will constitute, or be construed as constituting, the Consultant as a partner, agent, joint venturer, employee or other representative of ABCL." 14 It is alleged in the cross-claim that the term of the consultancy agreement was for five years, that it commenced in about late March 2003 and was purportedly extended by Adelaide Brighton Cement for a further two years pursuant to the provisions of clause 2 thereof. 15 It is alleged that the assets acquired from CGA under the Takeover Agreement were used by CGA in carrying on by it of Mr Wong's business, were essential to Mr Wong's business, were essential to the capacity of CGA and Mr Wong to import bulk cement into Australia and were essential to the capacity of CGA and Mr Wong to compete with Adelaide Brighton Cement and its related companies in the seven markets. 16 Paragraphs 14 and 15 of the cross-claim contain an allegation that: "The Takeover Agreement by the Restraint Instrument, and in particular clauses 3.1, 3.4, 3.5 & 4.7(b) thereof, constitute an unreasonable and unnecessary restraint on the applicant's freedom of trade, contrary to public policy and are void and unenforceable against the applicant." 17 There then follow 15 particulars, but it is not necessary to set them out. It is further alleged that Adelaide Brighton Cement has by its conduct, threatened to enforce and made claims to enforce the provisions of the Restraint Instrument and/or the Restraint of Trade Clause (i.e. clause 3.5(a) of the consultancy agreement) and particulars of this allegation are provided. 18 In essence, the pleas in paragraphs 14 and 15 are to the effect that the consultancy agreement and, in particular, certain clauses thereof, are void and unenforceable at common law as covenants in unreasonable restraint of trade. 19 Paragraphs 16 to 28 of the cross-claim contain allegations by Mr Wong of contraventions or threatened contraventions of the TPA by reason of the existence, or enforcement, or threatened enforcement of the provisions of the consultancy agreement and in particular clause 3.5(a) thereof. 20 In paragraph 16 it is alleged that but for the Takeover Agreement and/or the Restraint Instrument and/or the Restraint of Trade Clause, GCA and Mr Wong through GCA and Adelaide Brighton Cement and its related companies are, or are likely to be, or would be, or would be likely to be, competitive with each other in relation to the importation into Australia of bulk cement and/or the sale within Australia of bulk cement in the seven markets. Paragraph 17 contains an allegation that the Restraint Instrument and/or the Restraint of Trade Clause have or would have the purpose of preventing, restricting or limiting the acquisition by GCA and Mr Wong through GCA from outside Australia of bulk cement that it has imported or would otherwise import into Australia and the supply by GCA and Mr Wong through GCA of bulk cement to anyone within Australia. Particulars of these allegations are then provided but it is not necessary to set them out. In paragraph 18 it is alleged that the Restraint Instrument and/or the Restraint of Trade Clause are exclusionary provisions within the meaning of s 4D(1) of the TPA, and in paragraph 19 it is alleged that by enforcing or threatening to enforce the Restraint Instrument and/or the Restraint of Trade Clause, Adelaide Brighton Cement has purported to give effect to the Restraint Instrument and/or the Restraint of Trade Clause within the meaning and in contravention of s 45(2)(b)(i) of the TPA. Paragraph 20 contains an allegation that Mr Wong repeats and relies on matters previously pleaded. Paragraph 21 contains an allegation that the effect of the Restraint Instrument and/or the Restraint of Trade Clause is to prevent, restrict or limit the acquisition by Mr Wong from outside Australia of bulk cement that it has or would otherwise import into Australia and the supply by Mr Wong of bulk cement to anyone within Australia. 21 Paragraph 22 contains an allegation by Mr Wong that but for the operation of the Restraint Instrument and/or the Restraint of Trade Clause, GCA and Mr Wong through GCA would be a substantial competitor in the seven markets. 22 Paragraph 23 contains an allegation by Mr Wong that further or in the alternative to the allegation contained in paragraph 22, the Restraint Instrument and/or the Restraint of Trade Clause has the purpose and/or effect, or is likely to have the purpose and/or is likely to have the effect, of substantially lessening competition within the meaning of s 4G of the TPA in the seven markets in contravention or attempted contravention of s 45(2)(b)(ii) of the TPA. 23 Paragraph 24 of the cross-claim contains an allegation that Mr Wong repeats and relies on matters previously pleaded. Paragraph 25 contains an allegation in the alternative to the allegations pleaded in paragraphs 21-23 and it is that Adelaide Brighton Cement has acquired, and may continue to acquire from Mr Wong, services within the meaning of the TPA pursuant to the terms of the Restraint Instrument on the condition that Mr Wong will not undertake or be involved in any way with the acquisition by Mr Wong, by himself or through GCA, from outside Australia of bulk cement that he has imported or would otherwise import into Australia and the supply by Mr Wong by himself or through GCA of imported bulk cement to anyone within Australia. Paragraph 26 contains an allegation that within the meaning of s 47(10)(a) of the TPA the conduct of Adelaide Brighton Cement alleged in paragraph 25 has the purpose or has, or is likely to have, the effect of substantially lessening competition in the markets. Paragraph 27 contains an allegation that, by reason of the matters alleged in paragraphs 25 and 26, Adelaide Brighton Cement has engaged, and is continuing to engage or threatens to engage, in conduct within the meaning of s 47(4) in contravention of s 47(1) of the TPA. Paragraph 28 contains an allegation that by reason of matters previously pleaded, Mr Wong is likely to suffer loss or damage by and in consequence of the conduct in contravention of the provisions of the TPA. The particulars of this allegation are that in the event that the Restraint Instrument and the Restraint of Trade Clause are binding on, or enforceable against, Mr Wong, he will be prevented and precluded from importing into and selling in Australia bulk cement and thereby profiting.

Section 31A and the relevant rules of Court 24 The terms of s 31A of the Federal Court of Australia Act 1976 (Cth) are set out above. This proceeding was commenced after 1 December 2005. In those circumstances, judgment can be given for Adelaide Brighton Cement on the TPA claims under s 31A if it is established that Mr Wong has no reasonable prospect of successfully prosecuting that part of the proceeding. The TPA claims can be stayed or dismissed under O 20 r 5 if it is established that they are frivolous or vexatious or an abuse of the process of the Court. In both cases, evidence may be received on the application, although it must be borne in mind that a summary procedure is not to become a mini-trial. 25 An order can be made striking out those parts of the statement of claim which plead the TPA claims if it is established that they disclose no reasonable cause of action or have a tendency to cause prejudice, embarrassment or delay in the proceeding: O 11 r 16(a) and (b) of the Federal Court Rules. 26 The only evidence put before me on this application is the consultancy agreement. Adelaide Brighton Cement submits that the TPA claims have no reasonable prospects of success having regard to s 51(2)(b) of the TPA. Mr Wong has not tendered any evidence. Nor has he suggested that if I conclude that he has no reasonable prospect of successfully prosecuting the TPA claims as pleaded he is able to replead the case in a way which will disclose a reasonable cause of action for the relief claimed. Adelaide Brighton Cement has not yet filed a defence to the cross-claim and I do not understand there to be any suggestion by Mr Wong that Adelaide Brighton Cement has delayed in bringing this application. 27 Adelaide Brighton Cement seeks judgment only in relation to the TPA claims. It does not argue that the case against it insofar as it is based on the common law doctrine of restraint of trade may not proceed. It submits that if it is right in its contentions and the TPA claims are in effect dismissed from the proceeding, it will be saved considerable time and expense in not having to prepare to meet the TPA claims. It is difficult for me at this stage to make any precise assessment about the strength of that submission, but I do think that there would be some saving to the parties in terms of time and expense if Adelaide Brighton Cement's contentions are dealt with now and it transpires that they are correct. Importantly, I do not think the TPA claims and the claim based on the common law doctrine are related in a way which might cause me to pause before considering only one group of claims in a proceeding on an application for summary judgment. Subject to one submission, I did not understand Mr Wong to suggest that the claims are related in a way that meant I should not deal with the TPA claims on an application for summary judgment. 28 Mr Wong submits that the relevant provisions of the TPA, including s 51(2)(b), apply only to lawful contractual provisions and that until it is determined by reference to the common law restraint of trade doctrine whether the provisions are lawful it could not or should not be determined whether the provisions of the TPA apply. He said that there was "implicit support" for this submission in the decision of the High Court in Peters (WA) Ltd v Petersville Ltd (2001) 205 CLR 126 at [46]-[49]. The submission is one which is not easy to follow. I do not think the decision in Peters (WA) Ltd supports it in any way. In terms of procedure, that case is no more than an example of the Court dealing with issues in a convenient and expeditious way. The provisions of the TPA apply according to their terms and the common law doctrine of restraint of trade is preserved by reason of the provision of s 4M of the TPA. I reject Mr Wong's submission. 29 The test on an application for summary judgment under earlier rules of this Court and other Courts has been formulated in cases such as Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. There has been debate in recent cases in this Court as to the extent to which s 31A relaxes the test from an applicant's point of view. I need not enter that debate because I am satisfied that even on the test formulated in General Steel summary judgment on the TPA claims should be given in favour of Adelaide Brighton Cement.

Relevant legislative provisions 30 Section 4M of the TPA provides as follows: "Saving of law relating to restraint of trade and breaches of confidence This Act does not affect the operation of: (a) the law relating to restraint of trade insofar as that law is capable of operating concurrently with this Act; or (b) the law relating to breach of confidence; but nothing in the law referred in cl (a) or (b) affects the interpretation of this Act." 31 Section 4D contains a definition of an exclusionary provision (referred to in s 45(2)(b)(i)). It is not necessary for me to set out its terms. 32 Section 45 deals with contracts, arrangements or understandings that restrict dealings or affect competition as set out previously. Mr Wong alleges that Adelaide Brighton Cement breached the obligation in s 45(2)(b)(i) or the obligation in (ii). It is not necessary for me to set out these sections. 33 Section 47 deals with exclusive dealing, and it is alleged that Adelaide Brighton Cement acted in breach of the prohibition in that section. Again, it is not necessary for me to set out the terms of s 47. 34 Section 51 is entitled "Exceptions" and, generally speaking, it sets out circumstances which are to be disregarded in determining if there has been a contravention of Pt IV or sections in Pt IV. Relevantly, subs (2) provides: "In determining whether a contravention of a provision of this Part other than section 45D, 45DA, 45DB, 45E, 45EA or 48 has been committed, regard shall not be had - … (b) to any provision of a contract of service or of a contract for the provision of services, being a provision under which a person, not being a body corporate agrees to accept restrictions as to the work, whether as an employee or otherwise, in which he or she may engage during, or after the termination of, the contract: … (d) to any provision of a contract, arrangement or understanding between partners none of whom is a body corporate, being a provision in relation to the terms of the partnership or the conduct of the partnership business or in relation to competition between the partnership and a party to the contract, arrangement or understanding while he or she is, or after he or she ceases to be, a partner; (e) in the case of a contract for the sale of a business or of shares in the capital of a body corporate carrying on a business - to any provision of the contract that is solely for the protection of the purchaser in respect of the goodwill of the business;" 35 The relevant subparagraph is (b). Sub-paragraphs (d) and (e) are relevant because the kinds of contractual provision referred to therein have from time to time been said to be void and unenforceable at common law as provisions in unreasonable restraint of trade.

Issues on the application 36 Adelaide Brighton Cement submits that clause 3.5(a) of the consultancy agreement falls within s 51(2)(b) and that as that clause forms the basis of the TPA claims those claims must fail. These are the two propositions which must be considered. The thrust of the submissions related to clause 3.5(a) of the consultancy agreement. That clause is complemented by clauses 3.1 and 3.4 which provide that during the term of the contract Mr Wong will act exclusively for Adelaide Brighton cement in the provision of the services as defined. If clause 3.5(a) falls within s 51(2)(b) so do clauses 3.1 and 3.4 37 Some of the key features of the consultancy agreement are set out above ([13]-[14]). Some further features should be noted. The services Mr Wong is engaged under clause 3.1 to provide are as follows: "Services means (a) identifying for ABCL potential sources of supply of cement; (b) obtaining and/or negotiating on behalf of ABCL terms and conditions of imported cement supply offers and/or agreements; (c) acting as an agent or broker for ABCL in connection with the importation of cement by ABCL into Australia; and (d) identifying for ABCL foreign sources of fly ash, granulated blast furnace slag (both ground and raw) and any other supplementary cementitious materials." 38 Mr Wong is required to make himself available to provide the services for a maximum of 10 hours in each month during the term of the contract. 39 Clause 3.5(a) (set out in full above) limits the business and work Mr Wong can engage in during the term of the contract. It is said to be subject to exceptions set out in clause 3.5(b) which provides as follows: "(b) Clause 3.5(a) will not apply: (i) in relation to the supply of cement and fly ash by GCA pursuant to the terms of the Cement and Fly Ash Supply Agreement, the Consultant being the director and secretary of GCA; (ii) in relation to GCA's business of importing into Queensland cement and cementitious products sourced by GCA from China and resupplying that cement and those cementitious products within Queensland and Northern New South Wales, but only until the date of expiration or lawful termination of the Equipment Lease; (iii) in relation to the sale by GCA of the cement that, at the date of this Agreement, is in storage at the Austrak premises at the corner of Pinja Street and Anthill Road, Wedgehill, Port Hedland, Western Australia; (iv) if ABL fails to comply in all material respects with its obligations under the Cement and Fly Ash Supply Agreement; and (v) in any other circumstances that may be approved in writing by ABCL for the purposes of this clause from time to time." 40 Adelaide Brighton Cement is required to make an annual payment of $10,000 to Mr Wong and pay all his reasonable expenses. 41 The evidence suggests that the consultancy agreement is a contract for the provision of services rather than a contract of service: Lopez v Commissioner of Taxation (2005) 143 FCR 574. Clause 3.5(a) is therefore, a provision of a contract for the provision of services. Does it constitute a "restriction" as to the work Mr Wong as an employee or otherwise may engage in during the contract? Mr Wong submits that cl 3.5(a) constitutes a prohibition and not a restriction and, therefore, that it does not fall within s 51(2)(b). I do not agree. I think a restriction within the section includes an obligation not to engage in particular types of work, in this case, the importation into Australia of bulk or bagged cement or cementitious products that has or have been imported from outside Australia and that is a restriction as to the work in which Mr Wong may engage during the term of the consultancy agreement. Mr Wong is otherwise free to engage in any type of work he chooses. Clause 3.5(a) falls within s 51(2)(b) and it follows that regard is not to be had to it in determining whether there have been contraventions of s 45(2)(b)(i) or s 45(2)(b)(ii) or s 47 of the TPA. 42 In my opinion, if regard is not had to cl 3.5(a) the TPA claims must fail because when the pleadings are carefully analysed it is clear that the TPA claims have cl 3.5(a) as their basis. 43 Finally, I should mention one submission made by Adelaide Brighton Cement. It was submitted that there were two documents which could be used to determine the mischief to which s 51(2)(b) was directed. Both documents were prepared after that legislative provision was enacted. 44 The first document is a report of the National Competition Policy Review Committee led by Mr Frederick Hilmer. The report was prepared in response to a request by the Prime Minister in August 1992 for the Committee to undertake an independent inquiry into a national competition policy. The letter accompanying the report is dated 25 August 1993. The Committee stated that its task was as follows: "… proposing the most effective form, content and implementation approach for a national competition policy that will support an open, integrated domestic market for goods and services." 45 One matter considered by the committee was the topic of restrictive covenants. The committee noted that the TPA specifically excluded three kinds of restrictive covenant from the Act "so that their validity will continue to be determined according to the common law doctrine" and that those three types of restrictive covenant were those referred to in s 51(2)(b), (d) and (e) of the TPA. The committee recommended that those provisions be retained in their current form. 46 The second document is a final report of the National Competition Council dated March 1999 and entitled "Review of Sections 51(2) and 51(3) of the Trade Practices Act 1974". The report was referred to the National Competition Council by the Treasurer in accordance with the Commonwealth Government's Legislation Review Schedule. The report discusses s 51(2)(b), (d) and (e) and the common law doctrine of restraint of trade. 47 Adelaide Brighton Cement's submission was that these documents establish that s 51(2)(b) was introduced to avoid further regulation of restraint of trade clauses so as to avoid conflicting regulation and provide a degree of certainty and consistency in this area of the law. 48 I do not think that these reports can be relied upon for the purpose of interpreting s 51(2)(b) of the TPA. Adelaide Brighton Cement did not argue that the provisions of s 15AB of the Acts Interpretation Act 1901 were relevant. At common law, regard may be had to certain extrinsic materials for the purpose of ascertaining the mischief which a statute is intended to cure, even though no textual ambiguity is identified: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. Extrinsic material may include reports of law reform bodies prior to the enactment of the Statute. In certain circumstances, it may be that a statement of the mischief Parliament was intending to remedy made after the enactment of the provision to be constructed can be used for the purposes of interpreting the provision. It seems to me, however, that a person seeking to rely upon such a statement would need to establish, at the very least, that the statement was clearly one relating to the mischief the relevant provision was designed to remedy and that the statement was made by a person or body in a position to identify that mischief in a reliable way. It seems that the Full Court of this Court in ANZ Banking Group v Commissioner of Taxation (1994) 48 FCR 268 was prepared to take such an approach, although the observations of Hill J (with whom Northrop and Lockhart JJ agreed) were strictly obiter dicta. The two reports in issue in this case fall a long way short of meeting the requirements which would need to be met before they could be relied upon as identifying the mischief s 51(2)(b) was designed to remedy. In the circumstances, I place no reliance on the reports. 49 For the above reasons, I am satisfied that the TPA claims cannot succeed and in those circumstances, it is an appropriate case for summary judgment to be entered in relation to the TPA claims in favour of Adelaide Brighton Cement. I will hear the parties as to the precise orders. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate: Dated: 16 April 2008 Counsel for the Applicant/Respondent by Cross-claim: Mr N O'Bryan SC with Mr S Doyle

Solicitor for the Applicant/Respondent by Cross-claim: Minter Ellison

Counsel for the Respondent/Applicant by Cross-claim: Mr A Tokley

Solicitor for the Respondent/Applicant by Cross-claim: Duncan Basheer Hannon as agents for Anderssens Lawyers