Commissioner for Prices & Consumer Affairs (SA) v Charles Moore

Commissioner for Prices & Consumer Affairs (SA) v Charles Moore - [1977] HCA 38 - HCA 1977 case summary — Zoe

[22]

These two appeals from the Full Court of the Supreme Court of South Australia [23] have been heard together. The first appeal is brought from a judgment setting aside a decision of the Credit Tribunal ("the Tribunal") constituted under the Consumer Credit Act, 1972-1973 S.A. whereby the Tribunal declared that the respondents, companies which conduct retail stores in South Australia, were reporting agencies within the meaning of the Fair Credit Reports Act, 1974-1975 S.A.. The facts of the case may be stated sufficiently for present purposes as follows. The respondents, in the course of their business of storekeepers, extend credit to their customers. The total volume of credit provided in this way is large. Although the respondents are in active competition with each other, they exchange credit information on a reciprocal basis. This is done in various ways. First, and most important, is the exchange of information by telephone. When a customer who seeks credit at one store already has a credit account with another, an employee of the former store will telephone the latter, and request, and be given orally, a report on the way in which the customer has conducted his account. Some respondents get very many inquiries of this kind. Also, written reports about dishonest staff members, dishonest customers and customers whose accounts have been referred for collection to solicitors or debt collecting agencies are sent by stores to the Retail Traders Association, which collates this information and distributes it in the form of lists. The respondents co-operate in this way because they find that it is to their commercial advantage to do so. If a store will not supply information it will not be given information by others. The telephone reports are a prompt and comparatively reliable means of obtaining the information necessary to decide whether credit should be extended to a new customer, and if so to what extent, and are of real benefit to the respondents in the conduct of their retail businesses. Another advantage is that a store which participates in the arrangement avoids the necessity to pay the fees that would be charged by a credit bureau. The receipt of the lists from the Association is also of commercial value.

[29]

It was submitted on behalf of the respondents that, for the purpose of ascertaining the intention of the legislature of South Australia, it was permissible for the Tribunal to look at the changes made to the Bill which became the Fair Credit Reports Act and the report of the debates in both chambers of that Legislature when the Bill was being debated. It is established by many decisions of the highest authority that material of that kind may not be used as an aid to the construction of a statute. This rule is neither irrational nor outmoded. It is based upon sound practical reasons, some of which are stated in the judgment of Latham C.J. in South Australia v. The Commownealth [24] and in the speech of Lord Reid in Beswick v. Beswick [1] . Conflicting opinions as to the meaning or effect of a Bill may be expressed in the course of debate - perhaps sometimes even disingenuously - and it will often be impossible to say that any particular view is more authoritative than another. The debates in parliament would often introduce a new source of argument and confusion, rather than provide a guide to the construction of a statute. The need to have regard to the parliamentary debates for the purpose of construing a statute would render the law less certain, and the burden of having this additional material available for consideration, and of examining it, in many cases for no worthwhile result, would tend to aggravate the delay and increase the cost of litigation. A stronger case might perhaps be made out for permitting consideration to be given to the "preparatory works" - particularly the original Bill and the amendments to it - but that too would be "open to abuse and waste": Ealing London Borough Council v. Race Relations Board [2] . However, the existing rules are well settled, and if some modification to them is desirable - a question on which opinions may differ - that is a matter for the legislatures concerned. We were asked to reconsider the authorities, but it would not be a proper exercise of our judicial function to alter rules of law that are so firmly established.

[35]

The proper inference to be drawn from the facts already stated is that each respondent provides the credit information to another store, or to the Retail Traders Association, for the purpose of getting information in return. Putting aside personal considerations which might exist in a particular case, and even assuming that some storekeepers might be actuated by pure altruism, it is impossible to explain in any other way the practice whereby the respondents systematically supply useful information of this kind to their competitors. The reports are furnished pursuant to a reciprocal business arrangement. In return for participating in the arrangement, each respondent derives a commercial benefit; it obtains an assurance, of practical if not legal effect, that it will receive service similar to that which it gives. It is true that the commercial benefit which a respondent derives from its participation in the arrangement is not received in return for furnishing any particular report. Further, the benefit received cannot be precisely quantified. Nevertheless, the respondents furnish consumer reports for the purpose of receiving, and they do in fact receive, a commercial benefit of the kind which I have described. That commercial benefit is the return or recompense which the respondents expect to receive and do receive for furnishing the reports; it is a reward in the ordinary sense of the word. Moreover, as I have said, the reports are furnished for the purpose or in the expectation of receiving this reward. The necessary element of motive or purpose is present. I accordingly conclude that the respondents come within the definition of "reporting agency". I recognize that the question is a very arguable one, and notwithstanding the help that I have derived from the judgments of the members of the Full Court it has caused me much difficulty. In the end, however, I have been assisted by the consideration that the statute is a remedial one, and should be construed beneficially, to come to the conclusion which I have expressed.

[101]

Mr. Matheson sought to avoid this result by presenting a novel argument based on inferences to be drawn from the course of events in Parliament after the Fair Credit Reports Bill was introduced in the Legislative Assembly. I do not propose to review in detail the events which took place in the Parliament and which are recorded in "Hansard". To enable the argument to be understood it is sufficient to say that the statutory definition in its present form was settled upon after some disagreement took place between the two Houses. It is suggested by Mr. Matheson that recourse to "Hansard" will show that the existing form of the statutory definition was arrived at as a compromise between the two Houses and that in announcing the agreed form the Attorney-General informed the Legislative Assembly that the effect of the definition would be to exclude department stores from the provisions of the Fair Credit Reports Bill relating to reporting agencies. In support of the argument that we should look to "Hansard" for confirmation of these events and that we should draw the inference that the statutory definition is not intended by Parliament to include department stores, reference was made to recent observations by Lord Simon of Glaisdale in the House of Lords in McMillan v. Crouch [12] ; Charter v. Race Relations Board [13] ; and Dockers' Labour Club and Institute Ltd. v. Race Relations Board [14] ; see also where Lord Kilbrandon [15] expressed his agreement with Lord Simon of Glaisdale. In these cases Lord Simon of Glaisdale vigorously expressed the view that a new approach should be taken to statutory interpretation so as to avoid obvious instances of frustration of parliamentary intention, indicating that this object might be achieved if the courts were to give effect to any assurance given by a Minister to Parliament as to the meaning or effect of the Bill in the course of its parliamentary passage. However, as I read his Lordship's observations, they are directed to encouraging appropriate reform by means of incorporating in the Bill the effect of any such ministerial assurance or by some statutory alteration of the law. The remarks are not couched in terms of overruling past decisions which deny to the courts access to "Hansard" as an aid to statutory interpretation. In this respect they are of the same character as the more detailed suggestions made by Sir Garfield Barwick Q.C., M.P. (as he then was) in his paper "Divining the Legislative Intent", Australian Law Journal, vol. 35 (1961), p. 197. It should be noted that no member of the House of Lords except Lord Kilbrandon expressed his agreement with the remarks of Lord Simon of Glaisdale.

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Judgment (125 paragraphs)

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