Electricity Supply Association of Australia Ltd v Australian Competition and... [2001] FCA 1296 | Case summary

REASONS FOR JUDGMENT 1 The parties to this proceeding have been engaged for some years now in a lively debate over the possible impact of the implied conditions contained in s 71 of the Trade Practices Act 1974 (Cth) ("the TP Act") on electricity supply contracts with consumers. Put inexactly, these implied conditions require (subject to qualifications) that goods supplied to a consumer are of merchantable quality and are reasonably fit for the purpose for which they are known to be acquired. The TP Act defines "goods" to include "gas and electricity" for the Act's purposes "unless the contrary intention appears": see TP Act, s 4. 2 The applicant, Electricity Supply Association of Australia Ltd ("ESAA") which is the peak national industry association for the suppliers of electricity, has contended that the implied conditions do not apply to electricity supply contracts at all - there is a "contrary intention" - but that, even if they do, they would not render a supplier liable for damage resulting from a "power surge" (ie an excess of voltage beyond normal levels of any duration) or a "power brown-out" (ie a shortfall of voltage from normal levels of any duration) caused by acts of God and/or the actions of third parties that are beyond the reasonable control of the supplier. 3 For its part, the respondent, the Australian Competition and Consumer Commission (the "ACCC" or "the Commission") has at least contended that the s 71 conditions apply to supply contracts with consumers and that breach of the conditions does not require proof of fault (or negligence) by the supplier. I should add that the precise burden attributed to s 71 by the ACCC in its public statements is in issue in this proceeding. 4 Informing the contending views of the parties are the opinions of an array of eminent Queens Counsel. While exemplifying that reasonable and reasoned arguments can be marshalled on either side, the opinions have done little to quieten the controversy. This proceeding was instituted by ESAA in the hope that a resolution could be found in this forum. As will become apparent, the path to providing such a resolution is littered with obstacles. The Frame of the Proceeding 5 The essence of the relief sought by way of declarations, injunctions and an order of review is (i) to have the ACCC prevented from publicising and acting upon a view (or views) of s 71 of the TP Act that is (or are) said to be erroneous; and (ii) of vindicating the right of ESAA and its members both to publish their own (specified) views concerning s 71 and to expose the error of the ACCC's view (or views). The courses taken in ESAA's pleading to this end are threefold. 6 The first, under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"), seeks to have quashed and set aside decisions of the ACCC: (i) to publish the view of s 71 said to be erroneous ("the Publication Decisions"); (ii) (a) to threaten to initiate proceedings against ESAA and some of its members under s 52, s 53(g) or s 55 of the TP Act should they publish, or deny liability to consumers on the basis of, views of supplier-liability inconsistent with that attributed to the ACCC; and (b) not to revoke such decisions to threaten proceedings: (the "Threat Decisions"); and (iii) to refuse to give an undertaking to ESAA that it, the ACCC, would no longer publish its erroneous view ("the Undertaking Decision"). For ADJR Act purposes these decisions are said to have been made primarily under s 28(1) of the TP Act, that provision (set out below) conferring functions on the ACCC in relation to the dissemination of information. I will, for convenience, refer to these various challenges as "the ADJR Act claims". 7 The second basis for ESAA's challenge to the ACCC's actions is by way of claims for injunctive and declaratory relief by a party with a sufficient special interest to challenge and have restrained an alleged breach of at least s 28 of the TP Act, that breach being the publication of the ACCC's allegedly erroneous view of the law. This claim is founded on the decision in Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247. My jurisdiction to entertain it is attributed alternatively to this Court's accrued or associated jurisdiction or else to its original jurisdiction under s 39B(1A)(c) of the Judiciary Act 1903 (Cth), it being said that the relevant matter "arises under" s 28 of the TP Act. This claim will be referred to inexactly as "the common law claim". 8 The third course pursued by ESAA invokes s 163A of the TP Act. Put in shorthand form that section permits a person to seek a declaration in relation to the validity of any act or thing done or purported to be done under the TP Act. Again the allegedly invalid acts relate to alleged breaches of the Act in making the Publication and Threat Decisions referred to above. This will be referred to as "the s 163A claim". 9 Before considering these claims in turn it is necessary to refer both to the statutory and factual settings in some detail and to advert to the significance of the jurisdiction and standing issues raised by the ACCC. To anticipate the latter of these, the ACCC is contending in substance that I am being asked to give an advisory opinion on s 71 of the TP Act and one, moreover, in a setting devoid of proved or agreed facts. The Statutory Setting 10 The ACCC is constituted a body corporate by s 6A of the TP Act. Section 28(1) of the Act provides (insofar as presently relevant) that: "(1) In addition to any other functions conferred on the Commission, the Commission has the following functions: (a) to make available to persons engaged in trade or commerce and other interested persons general information for their guidance with respect to the carrying out of the functions, or the exercise of the powers, of the Commission under this Act; … (d) to make available to the public general information in relation to matters affecting the interests of consumers, being matters with respect to which the Parliament has power to make laws; (e) to make known for the guidance of consumers the rights and obligations of persons under provisions of laws in force in Australia that are designed to protect the interests of consumers." Principal among the "other functions conferred" on the ACCC by the Act are its enforcement roles under Part VI of the Act. Simply by way of illustration I would refer to the ACCC's power to seek injunctive and other relief under s 80 and s 87 for alleged breaches of Parts IV, IVA, IVB and V of the Act. 11 Section 4 of the Act provides that in the Act, "unless the contrary intention appears", the term "goods includes … (d) gas and electricity". I would note in passing that this (on the expert evidence) seemingly counterfactual prescription in the case of electricity was carried forward into the 1974 Act from the predecessor definition in s 5 of the Trade Practices Act 1965 (Cth) but that that latter Act had no counterpart provisions to those of Division 2 of Part V with which this present proceeding is concerned. I would also note that the same definition of "goods" likewise encompassed "animals, including fish" and "minerals, trees and crops, whether on, under or attached to land or not". 12 Division 2 of Part V both implies certain conditions and warranties into consumer transactions and precludes (subject to certain limitations) their exclusion or modification: as to the latter see s 68 and s 68A. Of present relevance s 71(1) and (2) provide: "(1) Where a corporation supplies (otherwise than by way of sale by auction) goods to a consumer in the course of a business, there is an implied condition that the goods supplied under the contract for the supply of the goods are of merchantable quality, except that there is no such condition by virtue only of this section: (a) as regards defects specifically drawn to the consumer's attention before the contract is made; or (b) if the consumer examines the goods before the contract is made, as regards defects which that examination ought to reveal. (2) Where a corporation supplies (otherwise than by way of sale by auction) goods to a consumer in the course of a business and the consumer, expressly or by implication, makes known to the corporation or to the person by whom any antecedent negotiations are conducted any particular purpose for which the goods are being acquired, there is an implied condition that the goods supplied under the contract for the supply of the goods are reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied, except where the circumstances show that the consumer does not rely, or that it is unreasonable for him or her to rely, on the skill or judgment of the corporation or of that person." 13 Section 66(2) of the Act requires "merchantable quality" as used in s 71(1) to be interpreted as follows: "(2) Goods of any kind are of merchantable quality within the meaning of this Division if they are as fit for the purpose or purposes for which goods of that kind are commonly bought as it is reasonable to expect having regard to any description applied to them, the price (if relevant) and all the other relevant circumstances." Illustrative of the other implied conditions in relation to contracts for the supply of goods to consumers are (a) undertakings as to title, encumbrances and quiet possession: s 69; and (b) conditions regulating the supply of goods by description or by sample: s 70 and s 72. 14 Importantly for the present proceedings, the ACCC is not able directly to enforce a Division 2 condition. Having contractual force and effect, they are enforceable by a consumer against the particular corporate supplier contractually bound by the condition in question. Nonetheless, as part of its enforcement function, the ACCC is able to police those provisions of the TP Act that proscribe false and misleading or deceptive conduct and representations. Notable in this regard for present purposes are (a) s 52 (misleading or deceptive conduct), s 53(g) (false or misleading representation concerning the existence, exclusion or effect of any condition warranty, right or remedy) and s 55 (misleading conduct as to, inter alia, the suitability for their purpose of any goods). I would note in passing that, unlike with s 52, contraventions of s 53(g) and s 55 can attract not only civil consequences but criminal sanctions as well: see TP Act, s 79. 15 Finally, s 163A provides, insofar as presently relevant, that: "(1) Subject to this section, a person may, in relation to a matter arising under this Act, institute a proceeding in a court having jurisdiction to hear and determine proceedings under this section seeking the making of: (a) a declaration in relation to the operation or effect of any provision of this Act other than the following provisions: (i) Division 2, 2A or 3 of Part V; … (aa) a declaration in relation to the validity of any act or thing done, proposed to be done or purporting to have been done under this Act; Factual Setting 16 A large body of documentary evidence was tendered in this proceeding. Affidavit and oral evidence and a joint expert report were given by Richard Clark (a chartered professional engineer) and Victor Gosbell (an Associate Professor of Engineering at the University of Wollongong). Affidavits were provided by Keith Orchison (Managing Director of ESAA), Hendrik Spier (Chief Executive Officer of the ACCC) and Jennifer McNeill (a solicitor employed by the applicant's solicitors). Professor Allan Fels (Chairman of the ACCC) and Fiona McLeod (Energy Industry Ombudsman for Victoria) were subpoenaed and gave oral evidence. 17 For reasons I later give, the view I take of this matter relieves me of the need to recount much of this evidence. It is nonetheless appropriate to refer to the nature of electricity and its supply in Australia and to provide both a general chronology by way of setting and a statement of the various views said to have been published/entertained by the ACCC and by ESAA. Electricity 18 The following is drawn from the applicant's submissions. Though expressed in lay terms, it is based on the expert evidence of Professor Gosbell and Mr Clark. And it is agreed to by the respondent. (a) Electricity is a form of energy which passes through conductors in a transmission or distribution system under the pressure of voltage. (b) "Voltage" is analogous to "electrical pressure". It takes one volt to push one amp through one ohm of resistance. An amp is the flow of electrical current and an ohm is the measure of the resistance of a conductor to the passage of electrical current. (c) A power surge occurs when, because of too great a voltage (hence too high a pressure), too much energy is transmitted to the user of that energy. A power brown-out occurs when, because of a deficiency of voltage (ie a deficiency of pressure) too little energy is transmitted to the user of the energy. (d) Power surges or power brown-outs can be of different magnitudes and duration. If they are of sufficient magnitude or duration they may cause damage to the property of a customer. However, not all power surges and power brown-outs cause property damage. (e) The causes of power surges and power brown-outs can be sourced to the following: (i) various equipment faults or human error in the control of that equipment; (ii) acts of God (such as earthquakes, lightning, cyclones etc); (iii) acts of third parties ranging from deliberate vandalism to aircraft or motor vehicle collisions with components of the electrical transmission system (such as power lines or power line poles). (f) It is part of the ordinary operation of the electricity system in Australia that power surges and power brown-outs occur from time to time. (g) To a large extent, power surges and power brown-outs are an inherent and unavoidable by-product of the vast majority of the electrical transmission and distribution lines in Australia being above-ground. They are exposed to external forces such as lightning, bird and animal life, deliberate vandalism, accidental human intervention (such as a plane crash into power lines) or acts of God, such as earthquakes destroying power lines or electrical storms or trees falling upon electricity transmission or distribution lines. Very often such events or activities, which are beyond the reasonable control of suppliers, cause the power surges or power brown-outs referred to. (h) Even where the transmission lines or power lines are placed underground, which is a hugely expensive exercise in a country like Australia, they are not immune from acts of God such as earthquakes, earth tremors, floods or the like, nor are they immune from the effects of lightning hitting the ground, or human intervention, such as someone accidentally digging into the ground and cutting the power lines. Placing the lines underground does not make the system immune from power surges or power brown-outs and its also creates additional technical issues which need to be managed. (i) Electricity is first generated at power stations located close to their source of fuel (coal etc) which are frequently long distances away from the point where the energy will be ultimately used or consumed by a customer. Efficient transmission of the energy from the power station to the ultimate customer requires the energy at the power station to be generated at very high voltage (in layman's terms - high pressure) which is then increased to even higher voltages by transformers. The transmission lines and distributional lines then carry the energy to the ultimate point of its application. Along the way, and prior to it reaching its destination, the electricity passes through a series of transformers which reduce the voltage (ie lower the pressure) so as to endeavour to distribute the energy to the ultimate consumer at a voltage suitable for the customer's appliances. In Australia, this voltage is 240 volts. (j) Human, animal or act of God interference with the transmission or distribution of the energy along the way from the power station may, for relatively short periods of time, defeat or impair the process of distribution of energy described above, by creating power surges or power brown-outs. 19 The only additional matters to which I would refer are these. First, though included in the TP Act's definition of goods, electricity as a form of energy is not "matter" but a property of matter having no weight, colour or other material attributes. Secondly a report to the Minister for Communications, Information Technology and the Arts of 24 November 1998 entitled "Putting Cables Underground" made the finding (Finding 28) that: "The group's best estimate of the total cost of putting electricity and telecommunications cables underground in urban and suburban areas of Australia was $23.37 billion in present dollar terms. The cost of putting cables underground in particular areas will vary with local conditions." Operations of the ACCC 20 The uncontested evidence relating to the operations and practices of the ACCC reveals it to be a public body of some size and scope. It employs over 350 staff and has offices around Australia. Some of its functions are centralised, while others occur at the branch level. It maintains close links with other regulatory agencies, in addition to providing guidance and education to both businesses and consumers. The educational and guidance functions are achieved through the publication of views on provisions of the TP Act and of other material. Such publications include internally produced documents which are available to the public, media releases, speeches by officers of the ACCC and material available on its website. By way of example, over 400 media releases in total were issued in the 1997-1998 and 1998-1999 financial years. 21 The ACCC investigates complaints by consumers and industry participants, and performs an enforcement role in relation to various provisions of the TP Act. In the 1998-1999 financial year, the ACCC received over 11,000 inquiries and complaints. Chronology 22 The apparent genesis of an ACCC view regarding s 71 of the TP Act and electricity supply arrangements lay in a response made by the Commission's State Director in Victoria by letter of 3 October 1996 to a request for the ACCC's views made by Ms McLeod, the Electricity Industry Ombudsman, Victoria. While guarded and qualified in the "views" expressed, the letter presupposed the applicability of s 71 to electricity supply contracts with consumers. It betrayed a concern with "[e]lectricity companies … misrepresenting, among other things, the effect of the implied conditions in Division 2" (express reference was made to s 53(g) of the TP Act) and it expressed the view: "An action for damages under Division 2 does not appear to require the consumer to establish that the supplier was negligent in supplying or manufacturing the goods. Rather, the question is whether, at the time of supply, the goods were of merchantable quality and fit for the purpose. Apart from considering the question of "all other relevant circumstances" in seeking to determine the merchantable quality of the electricity, the question of whether the electricity was fit for the purpose appears to be a question of fact. The liability is not qualified as in the case of "merchantable quality". Therefore, I consider that it would be wrong to assert that the distribution companies are only liable for damage caused by power surges if the company itself is negligent. It rests on the distribution company to take precautions against uncontrollable events which may cause power surges, or perhaps to insure against them. The distribution companies are contractually bound to supply electricity of merchantable quality and in a state which is fit for the purpose. How it does so is not the consumer's concern." 23 Ms McLeod was subsequently, and in light of legal opinions provided to her by the ACCC, to express the view to her own Council in a paper of 21 April 1998 that the ACCC approach of "strict liability … in voltage variation cases" was "the correct one for the resolution of cases lodged with the EIOV". 24 Representations made by Eastern Energy (an electricity supplier) in October 1996 in marketing insurance cover for damage caused by power surges - this denied its liability for power surges "caused by lightning strikes, trees, possums or birds contacting overhead wires, or by motor vehicle accidents" - and subsequent communications with that company induced the ACCC in November 1996 to seek legal advice on "the application of Division 2 of the Trade Practices Act 1974 to power surges caused by 'acts of God' " (to use the terminology employed in the subsequent opinion of Mr Archibald QC of 12 February 1997). I would note in passing that the minutes of the Commission's meeting of 20 November 1996 at which the issue of legal advice was raised also contains some reference, albeit inconclusive, to risk allocation and cost bearing for accidents. I will refer again to this particular theme later in these reasons. 25 Mr Archibald identified the "question of importance" in his advice to be: "whether liability exists in cases in which power surges occur without fault on the part of distribution companies. It is preferable to approach the matter on this footing, rather than on the narrower footing of liability for surges caused by acts of God. Clearly, … power surges are often caused by events which, although not acts of God, do not involve fault on the part of distributors." 26 Given the TP Act definition of "goods" and the character of the supplier-customer relationship the delivery of electricity to customers must, it was said, be regarded as the supply of goods for the purposes of s 71. 27 In relation to the requirement of merchantable quality the opinion stated: "The fact that of (sic) even the most diligent distributor is unable to ensure that at all times electricity will be supplied in a condition fit for the purpose for which it is required by the consumer does not, of itself, relieve the distributor of its contractual obligation to supply electricity of a quality which enables the electricity to be used for the purpose for which it is supplied (at least in circumstances in which exemption clauses are negated by operation of statutory provisions). While such circumstances may be "relevant" for the purposes of the definition in s 66(2) of the Trade Practices Act, I do not regard that factor as justifying the supply, with impunity, on some occasions of electricity in a form that is calculated (because of the surge) to cause harm to the customer's property if not the customer's person." Mr Archibald's conclusion was that: "I therefore am of opinion, on balance that electricity distribution companies which are subject to the operation of the Trade Practices Act 1974 are likely to be held liable for damage sustained by consumers in consequence of power surges notwithstanding that the power surges are not referable to fault on the part of the distributors. Such a consequence follows under s 71(1) because the excessive voltage associated with power surges renders that electricity not as fit for the purpose for which such electricity is commonly acquired as it is reasonable to expect having regard to all relevant circumstances. It may also follow under s 71(2). Such a conclusion can, however, be no more than a view as to the general result that may be expected to occur. The outcome in any particular instance in which a consumer suffers damage by reason of a power surge will, of course, depend upon the particular circumstances of the case." 28 The above advice provided the acknowledged basis for letters written by the ACCC to electricity suppliers that (a) noted that an issue had arisen as a result of statements made by industry members claiming that electricity companies were not liable unless there had been negligence on their part and offering insurance to consumers on this basis; and (b) indicated that "the Commission is of the view that electricity companies that represent to consumers that they have no, or only limited, liability for power surges are likely to contravene sections 52, 53(g) and 55 of the Act". 29 Copies of the Archibald advice were provided not only to the supply companies, but also to ESAA and to regulatory bodies. Some at least of the companies in turn obtained their own advices. Some of these were provided to the ACCC. 30 On 21 March 1997 United Energy Ltd provided the ACCC with the advice of Alex Chernov QC and James Peters. That advice assumed that s 71(1) and (2) applied to electricity supply contracts with consumers but disagreed with the Archibald opinion as to whether a supplier would be liable for breach of either implied condition when a power surge caused damage. It did, though, accept that a supplier could be liable to a customer where its own negligence caused a power surge. The advice reaffirmed conclusions reached by Mr Chernov in earlier advice to United Energy that is not in evidence. 31 In April 1997 J D Heydon QC provided Eastern Energy Ltd with advice that was later provided to the ACCC. That advice was that (inter alia) (i) the intention to be inferred from ss 68 - 73B of the TP Act was that the s 4 definition of "goods" so as to include "electricity" was not to apply to s 68-s 73B; (ii) if s 71(1) did apply to electricity then, having regard to the relevant circumstances that s 66(2) in particular would encompass (but not only to these), there were reasonable prospects of persuading a court that electricity was of merchantable quality despite the occurrence of power surges; and (iii) in relation to s 71(2), electricity that is subject only to surges that conform to what is to be expected from overhead supply may well be held to be "reasonably" fit - not absolutely fit but meeting a standard of fitness that is reasonable in the circumstances. The advice acknowledged that, while a supplier would probably not be in breach of s 71 because of a surge, it would depend on the circumstances. 32 On 18 April 1997 Dennis Rose QC and John Emmerig of Blake Dawson Waldron advised ESAA that they were of the view (i) that, for the reasons given by Mr Heydon "electricity" was not "goods" for the purposes of s 71; but (ii) that, if it was, the implied conditions would not be breached if there were surges in supply due to causes other than fault by the distributor. 33 In April 1997 the ACCC sought and obtained further advice from Mr Archibald QC and Mr Scerri QC. That advice acknowledged the weight of the contrary opinions referred to above, but nonetheless confirmed the Archibald advice. 34 During March and April 1997 the ACCC had a series of meetings with ESAA one object of which was to engage ESAA as a "conduit for dialogue" between the ACCC and the electricity companies outside Victoria. 35 On 1 May 1997 the ACCC wrote to ESAA, the electricity companies and to regulators concerning the application of Division 2 of Part V of the TP Act to electricity supply contracts. Having noted the divergence of opinion on the matter but also the reconfirmation by Mr Archibald QC and Mr Scerri QC of the original Archibald advice, the Commission indicated that: "[it] remains of the view that electricity companies will be liable for any loss or damage suffered by consumers as a result of a breach of the implied condition that electricity will be of merchantable quality. This includes damage caused by surges and brown-outs." It stated that it proposed to: "1. widely publicise the fact that, in the Commission's view, Part V, Division 2 of the Act applies to the contract for the supply of electricity to consumers; and advise that appropriate avenues for pursuing compensation include the Small Claims Tribunal and the courts. 2. challenge any representation which expressly or by implication conveys to consumers that they have no right to compensation where they have suffered loss or damage as a result of a breach of the implied condition of merchantable quality caused by reasons other than negligence on the part of the electricity supplier; and 3. where there is evidence that consumers are being denied compensation pursuant to existing rights, the Commission may seek to support a case to test the application of those rights." 36 Around this time there was considerable media coverage of the power surge issue, the ACCC's chairman, Professor Fels in particular being reported as expressing views for the Commission to which objection is taken by ESAA in this proceeding. Illustrative of such views are those expressed by Professor Fels on the ABC's "7.30 Report" of 30 April 1997: "If the Act says electricities are good (sic) and it must be fit for the purpose intended, then if it causes your computer to blow up then it's not fit for the purpose and in breach of the Trade Practices Act so far as damages liability." 37 In June 1997, ESAA informed the ACCC of ESAA's proposal that: "it make an application for a declaration that it would not infringe s 52 of the Trade Practices Act by publishing an assertion that electricity supply companies are not liable under the "merchantable quality" and "fitness for purpose" provisions of s 71 of the Act for damage caused by power surges and brown-outs due to acts of God and certain actions of third parties." The publication ESAA proposed also stated that the ACCC's statements that suppliers were liable under s 71 for loss caused by power surges and brown-outs "irrespective of the cause" were "incorrect statements of the law". 38 The ACCC by letter of 7 July 1997 stated it did not support the proposal indicating that as a result of counsel's advice it was concerned that an advisory opinion was being sought in relation to a hypothetical issue and that ESAA, not being a supplier, may not have standing in the proposed proceeding. The ACCC letter opened with the observations (inter alia) (i) that not only was its view of the law correct but that: "we also regard it as delivering the correct outcome from an economic perspective. Firstly, those best placed to correct the problem are able to do so and secondly the burden of failure is shared equally in the community rather than falling at random on individual consumers"; and (ii) that: "[t]he Commission would prefer to see the Association and its members focus their resources on customer service and ensuring that the product supplied meets the needs of their customers. We understand that there are many steps that members can take to reduce their exposure." 39 On 21 August 1997, Henry Burmester, Chief General Counsel of the Australian Government Solicitor, advised the Minister for Customs and Consumer Affairs on the application of the TP Act in relation to liability arising from power surges. Having regard to the various opinions provided by counsel (though not that of Mr Heydon QC) he concluded that the views expressed by Mr Archibald QC while open are not entirely convincing and are not likely to be upheld by a court. He favoured the prospects of the rival view. He went on to comment: "11. Ultimately, the legal position can only be resolved through decision of the courts. However, I note from material provided to me that the principal concern of the ACCC appears to be that the risk in respect of damage caused by power surges should lie with the electricity distribution companies rather than consumers. That is an understandable concern from the perspective of a body such as the ACCC. In seeking to convince distribution or supply companies to assume such responsibility, it is clearly open to the ACCC to marshal legal arguments which might support that conclusion. That appears to have been what they have sought to do in the Archibald opinion. However, while that may assist in the ultimate resolution of the matter from a policy perspective, the conclusion I reach from a legal perspective is that the argument based on the existence of legal liability is not entirely convincing and may well not succeed if tested in court." 40 The ACCC subsequently sought the views of Sweeney QC. His oral advice was that he agreed with the opinion of Archibald QC which he considered may have been "over-cautious". 41 In mid-1998 the ACCC investigated a complaint by a consumer against Energy Australia involving allegations that Energy Australia had represented it was not liable for damage caused by power surges. Though contemplating litigation, the ACCC accepted a written undertaking from Energy Australia under s 87B of the TP Act that addressed the ACCC's concerns. Those undertakings were accepted on 10 December 1998. 42 On 11 December the ACCC issued the first of two media releases of that day regarding the Energy Australia undertakings. As it is said to be emblematic of the ACCC publications to which objection is taken in this proceeding it will be referred to in a little detail. It stated in part: "ACCC gets compensation and warns on consumers' rights In an important precedent for electricity consumers throughout Australia, around 1.3 million electricity consumers will be told of their right to claim compensation for damages caused by power surges to appliances such as computers, television sets and such whitegoods as refrigerators and washing machines. Energy Australia has provided the Australian Competition and Consumer Commission with enforceable undertakings in relation to statements that it was not liable for damage to consumers' property caused by defects in the power supply. The ACCC believes this was in breach of the Trade Practices Act 1974. Energy Australia will write to its 1.3 million customers informing them of their consumer rights and will also begin an immediate review of 3000 previously rejected claims. The ACCC was particularly concerned that consumers may have had claims for compensation wrongly rejected or may have been discouraged from lodging a claim with the company at all, as a result of the misinformation. This is an important precedent for the Australian electricity industry as a whole. The ACCC repeats its warnings to companies not to misrepresent consumers' rights to claim for damage caused by power surges. The ACCC considers that the industry is liable for damage caused by power surges and power brown-outs (the opposite of a surge - when there is a reduction in voltage to below normal levels). ACCC Chairman, Professor Allan Fels said, "An ACCC concern is that consumers are not misled into thinking that power companies have no legal liability for loss or damage caused by defects, such as power surges, in electricity supply. For example, where a power company tells consumers it is only liable if the surge was caused by its own negligence, this is likely to breach s 52 of the Trade Practices Act because it is liable, regardless of fault." Section 52 prohibits misleading or deceptive conduct. The Trade Practices Act defines electricity as a good and provides that goods supplied must be fit for the purpose intended. If a power surge causes damage, the electricity supply is not, in the ACCC's view, fit for the purpose intended and therefore the supplier is liable under the Act. This is also good policy. If a power surge causes damage to a consumer's computer, television, washing machine or other appliance someone has to pay. It seems appropriate that liability is placed on the party best placed to avoid or minimise the damage, ie the company supplying the power. Energy Australia has provided an enforceable undertaking to the ACCC to pay compensation to customers who suffered loss or damage to property as a result of defects in the power supply since 1 March 1996, unless Energy Australia can prove the damage was a result of problems in the customer's own installation." 43 ESAA in turn issued a press release the same day responding to that of the ACCC. It reiterated its view that suppliers were not liable for power surges beyond their control. The ACCC replied later in the day in a press release expressing disappointment at the "customer unfriendly response of ESAA". It reiterated its view that the warranty provisions applied to supply to consumers. 44 On 28 January 1999 ESAA's solicitors wrote to the ACCC in consequence of the publication of the two ACCC press releases of 11 December 1998. It characterised the first release as indicating the ACCC would bring proceedings under the TP Act against suppliers which published the "ESAA view". It made the following demands: "Unless the ACCC, by 5pm on Thursday 4 February 1999, unconditionally: (a) revokes the threat of legal action against electricity suppliers under sections 52, 53(g) or 55 Trade Practices Act 1974 in respect of the publication of the ESAA view of the effect of section 71; and (b) undertakes not to commence such legal action while the relevant sections of the Trade Practices Act 1974 remain in their present form, ESAA proposes to apply to the Federal Court for appropriate relief." The ACCC's failure to act as ESAA required is one of the reviewable decisions challenged in the ADJR Act claim. 45 The present proceeding was commenced on 8 February 1999. On a television news programme of 9 February in an item dealing with this litigation, Professor Fels commented: "We think its absurd that the Electricity Supply Association of Australia and their lawyers say that the warranty provisions of the Act don't apply to electricity." The Pleaded Supplier Liability "Views" 46 In the Further Amended Statement of Claim it is alleged that, throughout the period 1 March 1997 to 4 February 1999, the ACCC published or caused to be published what is described as the "Absolute Liability view" (or statements akin to that view). The view, it is said, does not correctly state the law. The view itself is particularised as follows: "The "Absolute Liability view" is, or is a view to the effect, that the implied conditions of merchantable quality and reasonable fitness for purpose in section 71 of the Trade Practices Act 1974 (Cth) applies to electricity supply arrangements between a supplier and a customer and, irrespective of the circumstances of supply or the cause of the power surge or power brown-out, is breached by a supplier whenever a power surge or power brown-out causes damage to its customer." 47 The ACCC in its Defence denied having published the Absolute Liability view but admits that that view does incorrectly state the law. The ACCC claims, rather, that at all material times it held and published what is described as the "ACCC View" (or a view to substantially the same effect). That view is particularised as follows: "The "ACCC view" is that (in the usual case) section 71 of the TP Act applies to contracts for the supply of electricity by electricity supply corporations to consumers in the same way that the section applies to all contracts for the supply of goods to consumers by corporations. The issue of liability for any alleged breach of the implied terms in section 71 must be determined on a case-by-case basis and will depend on the circumstances that arise in each case. Those circumstances will include whether the implied terms are breached, and whether the breach has caused loss or damage. In relation to the implied condition of merchantability, the question of breach will involve the application of sub-section 66(2) of the TP Act. The Respondent does not consider that electricity supply companies are liable for damage only where the supply involves negligence. Breach of the implied condition may occur without negligence. Accordingly, the Respondent holds the view that electricity supply companies are not entitled, in connection with the supply of electricity to consumers, to represent that they are not liable for damage to consumers resulting from powers [sic] surges or brown-outs, other than as a result of negligence. The making of such representations may mislead or deceive consumers as to their contractual rights in contravention of section 52 and/or paragraph 53(g) of the TP Act." In its Reply to the Defence, ESAA denied both the publication and the correctness of this view. 48 For its part ESAA has pleaded the view which it and its members hold but for which the ACCC threatens to initiate or cause the initiation of legal proceedings should it be published by ESAA or its members. This view, the ESAA view, is cast as follows: "The Applicant holds the view ("ESAA view") that: (i) the Absolute Liability View is an incorrect statement of the law; and (ii) in the event that the warranties implied by section 71 of the Trade Practices Act 1974 (Cth) do apply to the supply arrangements between suppliers and customers in relation to the supply of electricity, the warranties are not breached by suppliers where a customer suffers damage resulting from power surges or power brown-outs caused by acts of God and/or actions of third parties, the consequences of which to the customer are outside the reasonable control of suppliers." 49 A considerable body of documentary material taking the form of press releases, statements and interviews, correspondence by the ACCC with ESAA, its members and with consumers has been tendered to prove the ACCC's publication of the Absolute Liability View. It is unnecessary that I further illustrate the materials so tendered. The ACCC's Alleged Purposes 50 I here refer in an illustrative way to views expressed by the ACCC which are alleged to betray its purpose or purposes in making the decisions that are impugned in this proceeding. These views I will, for convenience, describe as the "risk allocation" view and the "customer service view". Both are given varying expressions in a number of documents that have been tendered. The following are representative: (i) Professor Fels: "I hope very much that the power companies in this new era will adopt a consumer friendly approach on this issue and try to resolve the problem by making them appropriate offerings up where there are power surges that do cause demonstrable damage." Transcript of radio interview, 12 May 1997. (ii) The "Background" document attached to an ACCC media release of 8 February 1999, after referring to the ACCC's legal view, contained the following: "There are policy reasons as well for the ACCC's position. Firstly, electricity supply companies have a near-monopoly over the supply of electricity to small consumers. In a competitive market, consumers could choose who to use, and it is reasonable to expect that they would choose suppliers who ensured that their product, electricity, was suitable for running relevant appliances and so on and if not took appropriate steps to cover any loss (say through insurance). Secondly, the right approach is to ensure that the party who has the least cost means of avoiding or mitigating the damage has the incentive to do so, by being responsible for the loss if they do not take those measures. Clearly, electricity supply companies are in the best position to do that. (iii) "Professor Fels said that the central issue was where the risk should lie in respect of damage caused by power surges. He said that the ACCC was hopeful that their view would be confined to "surges" or "spikes" and would not extend to "brown-outs" or "blackouts". He said that the ACCC's preliminary assessment was that their view of the liability situation in respect of power surges was "not such a big deal financially". However, he further said that there had been a lot of media publicity in Victoria over recent months and interest in the issue had also been expressed by the Office of the Regulator General and the Electricity Industry Ombudsman. Professor Fels suggested that electricity distributors should really be looking at the power surge issue as one of customer service rather than legal liability." Minutes of an ACCC-ESAA meeting of 7 March 1997. (iv) Professor Fels: "Going onto another point, let me talk about where we are coming from. It is one thing to talk about what the law is but we are of the view that the law produces a good result in this case. We are very interested in the question of incentives to comply with the law. For example, look at accident law. The optimum distribution of risk in the law and how to make the best use of it is what we are talking about. … This is what is happening with the Alan Archibald interpretation of the law. In the broad sense in this stage of our technical history, power surges and brown-outs are causing damage. We can spend some money to cut that back. The electricity distribution businesses are the least cost avoiders and should bear the liability. The calculus is fairly clear. They are the least cost avoider." Minutes of an ACCC-ESAA meeting of 19 September 1997. Jurisdiction, Standing and a "Matter" 51 From the time of early directions hearings the ACCC has flagged as preliminary issues its concerns, variously, with (i) whether this Court has jurisdiction to entertain some or all of the various claims raised in the application and its amendment; (ii) whether ESAA has standing in relation to the ADJR Act and the common law claims; and (iii) whether, as a matter of discretion, this Court would grant the declaratory and injunctive relief sought in any event. 52 Some of those concerns are not without substance. As I understand the ACCC's position at the hearing, it (a) accepts that I have jurisdiction to entertain the ADJR Act application though it contends that, for a number of reasons, the requirements of that Act for the grant of relief cannot be satisfied; (b) acknowledges that, if ESAA has a "sufficient interest" to seek injunctive and declaratory relief, the common law claim could fall within the Court's accrued jurisdiction provided there actually is a "matter" at all; and (c) accepts I have jurisdiction to entertain the s 163A claim at the suit of ESAA though it again disputes whether ESAA can satisfy the requirements of the Act to justify the award of declaratory relief. 53 Though packaged differently, all three types of claim have a common point of focus. It is s 28(1) of the TP Act. As ESAA clearly has standing to invoke the original jurisdiction of this Court under s 163A of the TP Act and as the construction of s 28(1) bears (i) directly on both the common law and s 163A claims; and (ii) indirectly on whether the decisions sought to be impugned in the ADJR Act claims are "decisions under an enactment" - the course I intend to take is to consider the three claims in turn without separately considering the issue of standing and of jurisdiction in relation to each. In relation to the ADJR Act claim the issue of standing itself merges with the question of whether there is a "reviewable decision". And the common law claim sufficiently overlaps with the s 163A claim as to justify , as a matter of convenience, consideration of the substantive issue raised in the common law claim without first addressing the preliminary issues of standing and jurisdiction. The Common Complaint 54 The premise informing what is common to the ADJR Act, the common law and the s 163A claims is that both the "Absolute Liability view" and the "ACCC view" are incorrect statements of the law. And the common matter of contention - though approached from differing perspectives - is whether the making of such statements is beyond what is authorised by s 28(1)(a), (d) and (e) of the TP Act. 55 The principal ADJR Act claim (relating to the "Publication Decisions") is that the decision manifest in the published "views" involved errors of law, these being that s 28(1)(d) and/or s 28(1)(e) did not empower the ACCC to publish incorrect statements of the law (i) as objective statements of the law or (ii) alternatively, as statements which the ACCC did not at the time of publication have reasonable grounds for believing to be correct. 56 The common law claim is that in publishing the "views", the ACCC acted in excess of limitations imposed by s 28(1), or else, seemingly, acted for an ulterior purpose. 57 The s 163A claim is that the acts or things (ie the publications) purporting to have been done under s 28(1) of the TP Act were invalid and for like reasons. 58 By casting its s 71 dispute with the ACCC under the shadow of s 28 (as it seeks to have that section interpreted), the ESAA has sought to give its claims the character of real, justiciable controversies brought by a party having a sufficient interest to satisfy standing requirements (for the ADJR Act and common law claims) by virtue of the alleged adverse consequences suffered by it and its members as a result of the publications. 59 Before analysing the allegations made from the particular perspectives of each of the three types of claim, it is appropriate first to have some regard to the language and setting of s 28(1) itself. Section 28(1) 60 First, the section is in terms a "function" conferring one. Though it is unnecessary for me to express any concluded view on the matter, I would incline to the view that the various functions prescribed in s 28 are properly to be characterised as duties of the ACCC: cf Bridgetown/Greenbushes Friends of the Forest Inc v Executive Director of the Department of Conservation and Land Management (1997) 18 WAR 126 at 164-166; albeit duties the precise incidents of which raise difficult questions which need not be explored here: see, eg, John Fairfax Ltd v Australian Postal Commission [1977] 2 NSWLR 124 at 131-133. I mention this matter simply for the purpose of indicating that s 28(1) cannot be regarded simply as conferring legal capacity on the ACCC to perform the functions specified and no more. 61 Secondly, the functions are additional to such others as have been conferred on the ACCC by the TP Act. One such "other" function to which I have already referred is that of policing/enforcing compliance with various Parts of the Act. The reason I refer to this is that statements made by the ACCC about the meaning of particular provisions of the Act may be made, not in the performance of any s 28(1) function, but rather as an incident of its policing/enforcement function. 62 Thirdly, it is for the ACCC to determine what are proper and appropriate methods of discharging and performing its s 28(1) functions. In performing its s 28(1)(e) function of "making known for the guidance of consumers the rights and obligations of persons under provisions of laws in force" etc, the ACCC is clearly not limited to publicising no more than the actual terms of relevant legislative provisions. That function encompasses, necessarily, the expression of opinions about such "rights and obligations". For reasons I will later give, I am unable to accept that the accuracy of any statement of law so made in the performance of the s 28(1) function is a "jurisdictional fact" upon which the lawful performance of that function is conditioned: on jurisdictional facts see Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135; Cabal v Attorney-General of the Commonwealth [2001] FCA 583; see also Aronson, "The Resurgence of Jurisdictional Facts", (2001) 12 Public Law Review 17. Indeed I consider that, having regard to the obvious legislative purpose informing the conferral of the s 28(1)(e) educative function on the ACCC, Parliament would not have intended that, in its performance, the ACCC was to be exposed to legal challenge on vires grounds whenever it ventured an opinion on the law that may have been incorrect: cf Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 391ff; the more so, on the evidence before me, when one has regard to the various - I would interpolate predictable - ways in which and by whom the ACCC through its officers could reasonably have been expected to provide the guidance envisaged by s 28(1)(e). The apparent premise of s 28 was that the ACCC would possess, and/or equip itself with, the knowledge and expertise reasonably necessary to provide such appropriate and informed inquiry, advice or opinion as the performance of the s 28 functions envisaged. The ADJR Act claim: the "Publication Decisions" 63 The ACCC's decisions publicising its "views" on supplier liability for power surges, through media releases, interviews, correspondence, etc are the centrepiece of ESAA's ADJR Act challenge. Though challenges are levelled as well at two other categories of decision - the Threat Decisions and the Undertaking decisions - these are disposed of separately later in these reasons. 64 The short answer to the challenge to the Publications Decisions is that they are not decisions to which the ADJR Act applies. To indicate why this is so, it is necessary first to refer both to the ADJR Act itself and to principles that have evolved as a result of its interpretation. "A decision under an enactment" 65 For a "decision" to be amenable to the order of review process provided for in s 5 of the ADJR Act it must, as s 3 of the Act provides, be one "of an administrative character made, proposed to be made, or required to be made … under an enactment". The s 3 definition has been subject to considerable judicial exegesis the best known of which being that of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 335 - 338 which I need not repeat here. 66 For present purposes it is necessary to refer to some only of the matters that bear upon whether a decision will be found to fall within the statutory definition. First, the quality or character of the decision. Generally, the decision will need to be final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration: Bond's case at 337. This quality has been used on occasion to provide the contrast between a reviewable decision and a non-reviewable decision, with the latter being variously identified as (a) a decision (often of a procedural character) made in the course of a decision-making process leading to an ultimate decision and for that reason lacking the requisite finality itself: Edelsten v Health Insurance Commission (1990) 27 FCR 56 at 68; Margarula v Minister for Environment (1989) 92 FCR 35; (b) a decision that was not a "substantive determination": McLachlan v Australian Securities and Investments Commission (1999) 30 ACSR 418 at 426-427; that did "not determine anything": Ruddy v Commissioner of Taxation (1998) 82 FCR 337 at 343; that was a "mere expression of an opinion": Ross v Costigan (1982) 59 FLR 184 at 197; that was a "decision in principle": Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516 at 548ff; or that was a "statement of policy": Pegasus Leasing Ltd v Commissioner of Taxation (1991) 32 FCR 158 at 162; and (c) a decision which itself had no "real or practical effect": Attorney-General of the Commonwealth v Queensland (1990) 25 FCR 125 at 142; Salerno v National Crime Authority (1997) 75 FCR 133 at 137-138; or which had no operative or determinative effect upon a person's rights, interests, or expectations: Randwick City Council v Minister for the Environment (1998) 54 ALD 682 at 697-698. 67 While the above contrasts can be useful, often decisive, in individual cases in assisting to determine whether a particular decision is itself sufficiently "final" and "determinative" to be reviewable for ADJR Act purposes, it must be recognised that they are in the end no more than guides to a conclusion. What for example, may in form be an opinion, may nonetheless be so sufficiently determinative and have such real and practical consequences as to constitute a reviewable decision: Salerno v National Crime Authority, above, at 138; Kelson v Forward (1995) 60 FCR 39 at 60 ff. Likewise a decision made in the course of a decision making process may nonetheless be of such character and of such significance in a statutory scheme as to be a reviewable "intermediate decision": Bond's case, at 337. 68 The second quality required of a "reviewable decision" is that it be a decision "made under" an enactment. As has been affirmed in a number of decisions of the Full Court of this Court: "a decision is "made" under an Act if it is "a decision which a statute requires or authorises" or "one for which provision is made by or under a statute": Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 336, 337 per Mason CJ. … [A] decision meets that test only if it is one for the making of which the relevant statute either expressly or impliedly provides and one to which the statute gives legal force or effect." Australian National University v Lewins (1996) 68 FCR 87 at 101; Salerno v National Crime Authority, above, 143; on implied authorisation, see Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 at 303; on the statutory "force or effect" requirement, see General Newspapers Pty Ltd v Telstra Corporation (1993) 45 FCR 164 at 172-173. 69 This test requires there to be a "sufficient connection" between the text of the statute in question and the decision sought to be reviewed. As Black CJ observed in Hutchins v Commissioner of Taxation (1996) 65 FCR 269 at 272: "If a decision is neither expressly nor impliedly required by an enactment and, although authorised, is authorised by an enactment only in a very general way, it is unlikely to have the character of a decision for which provision is made under an enactment. The connection between the text of the enactment and the decision is likely to be too remote for the decision to have the requisite character." 70 This "sufficient connection" requirement itself effects a balance between the policy, on the one hand, of allowing effective redress to persons aggrieved by administrative decision making processes (so enhancing those processes), and that, on the other hand, of protecting the efficient administration of government from impairment by an extended conception of a reviewable decision: Salerno v National Crime Authority, above, at 143; Bond's case, at 336-337. In underscoring the significance of the connection requirement, the Full Court in Salerno observed (at 143): "If a general authorisation in a statute for a decision by an organisation set up under that legislation is sufficient to make it a decision under the statute, and thus open to judicial review, every intra vires action of that organisation that has decisional effect and every kind of conduct engaged in by it for the purpose of making a decision will be examinable by the court. The potential for massive disruption of the organisation's activities that would be the consequence of such a conclusion is manifest." 71 Of immediate relevance to the present proceeding, in Giraffe World Australia Pty Ltd v Australian Competition and Consumer Commission [1998] FCA 1560, Lindgren J refused to find that connection between either the ACCC's publishing of a media release or its alleged provision of information to the Department of Fair Trading and s 28(1) of the TP Act. The media release (referred to as "Schedule A") described the award of ex parte injunctions at the suit of the ACCC against Giraffe World in respect of an alleged pyramid selling scheme. The information said to have been provided to the Department found its way into a publication referred to as "Schedule B". His Honour was of the view that: "The publishing of the words in Schedules A and B … may be said to come within s 28(1)(a), (d) or (e). However, in my view, that does not lead to the conclusion that the decision to publish was made "under" such a provision. In General Newspapers Pty Ltd v Telstra Corp (1993) 45 FCR 164 at 172, Davies and Einfeld JJ held that the AD(JR) Act is "concerned with decisions which, being authorised or required by an enactment, are given force or effect by the enactment or by a principle of law applicable to the enactment" (emphasis supplied). The decision to publish the words in Schedules A and B was not "given force or effect" by s 28(1). Section 28(1) describes in general terms certain functions which the Parliament has given to the ACCC for it to perform by such means as may be lawfully open to it. The particular decisions to issue the media release (Schedule A) or to provide the information to the Department of Fair Trading (said to have given rise to Schedule B) are not provided for at all in s 28(1) but are decisions taken in the exercise of an aspect of the ACCC's capacity as a legal person in the course of the performance of its functions." (emphasis in the original) 72 Unless I am of the view that Giraffe World, is distinguishable or else is clearly wrong, I would follow it consistent with the comity principle followed in this Court: on comity see Bank of Western Australia v Federal Commissioner of Taxation (1994) 55 FCR 233 at 255. Submissions and Conclusions 73 I am for the moment prepared to assume that the various publication decisions challenged were decisions that were referable to the ACCC's performance of the information providing and educative functions conferred on it by s 28(1)(a), (d) and (e) of the TP Act. In this sense, to mirror what Lindgren J said in Giraffe World the decisions may be said to come within s 28. I will, though, indicate below that there is force in the ACCC's contention that, considered in the context of its dispute with ESAA, the ACCC's decisions were referable, in some degree at least, to its performance of its policing/enforcement function. 74 ESAA's case, put shortly, is that (i) when considered in their context together with the "Threat Decisions", the Publication Decisions have the requisite degree of finality to satisfy the Bond principle of Mason CJ; (ii) the publications were not "mere expressions of opinion" but were categorical public assertions by a powerful regulatory authority of views intended to influence the conduct of suppliers and consumers - and assertions coupled with the threat of prosecution if a contrary view was published; and (iii) the decisions were made under s 28(1), the functions conferred by that section relating specifically to the publication of information concerning the rights of consumers. It is suggested that the type of publication in Giraffe World was distinguishable, it being merely a "reporting" publication in that case. But if the publications in the two cases are indistinguishable I am invited not to follow Giraffe World on the basis that it is clearly wrong. Finally, I have also been invited not to treat the Bond requirement of finality as being applicable to decisions of the present kind. 75 I would note in passing that in its Further and Better Particulars, ESAA stated the adverse consequences said to flow from the ACCC's publications to be: (a) consumers have been misled by the ACCC's publications of the Absolute Liability view; (b) consumers have relied on the ACCC's publications of the Absolute Liability view and this in turn has led to a marked increase in consumer claims for compensation for damage caused by power surges or brown-outs; (c) electricity suppliers have deferred or disputed claims for compensation and this in turn has led to unnecessary disputes between suppliers and consumers regarding such claims; (d) these disputes have resulted in legal and other costs being incurred by suppliers and consumers; (e) the ESAA and its members have been subject to threats of legal proceedings; (f) the ESAA and its members have had to incur legal, expert and administrative costs; (g) the ESAA and its members have had to apply their personnel and financial resources to address the legal and factual issues raised by the ACCC; (h) the ESAA has suffered unquantifiable detriment both to its and the industry's good name; (i) the commercial relationship between suppliers and their customers has suffered unquantifiable detriment; (j) the ESAA has had to apply to the court for relief in these proceedings. The actual evidence of any of this, as the ACCC rightly indicates, is slight indeed. I mention these alleged consequences simply so as to indicate the types of "practical effect" that ESAA attributes to the decisions it impugns. I should add that I make no findings in relation to the matters particularised. It is unnecessary to do so. 76 There are some number of reasons why ESAA's submissions should be rejected. First, the decisions cannot be said to be "made under an enactment", consistent with the authorities binding upon me. Even if it be assumed that the decisions were taken in furtherance of the informing and educative functions conferred by s 28(1) of the TP Act and for that reason could be said to find authorisation in the Act, they nonetheless were not decisions "given force or effect by the enactment": General Newspapers Pty Ltd v Telstra Corporation,above, at 172. The reason for this relates to the character of the function the ACCC actually was performing. It was one of informing and educating albeit, as here, forcefully and in some instances in categorical terms. The performance of that function had no relevant force or effect given it by the TP Act even though it was, as I have previously suggested, duty bound to perform the function. 77 Section 28 did not make provision for the publication decisions, though as a practical matter the section presupposed that the ACCC would form opinions and make choices and judgments - ie decisions - as to the manner and extent of its performance of the function in question. But those decisions, as Lindgren J indicated in Giraffe World, would be ones "taken in the exercise of an aspect of the ACCC's capacity as a legal person in the course of the performance of its functions". They were not taken in consequence of an implied requirement of the performance of the function itself. That function was unrelated intrinsically or incidentally to a requirement to make substantive decisions. The function was merely one of informing and educating. 78 I am, in consequence, of the view that it cannot properly be said that the Publication Decisions were made "under an enactment" even though, as I will later indicate, they involved the performance of a public function capable of attracting legal consequences for that reason. 79 My conclusion above becomes the more obvious when one considers whether the Publication Decisions themselves could be said, in any event, to have the character of "decisions" for ADJR Act purposes. In my view they clearly cannot. The decisions did not, and could not of themselves, determine anything. They were not decisions of a substantive nature: cf Hutchins v Commissioner of Taxation, above, at 274. They neither gave rights to a consumer nor imposed obligations upon a supplier, though they expressed opinions in relation to rights and obligations. They decided no factual issue. They were, and could only be, in the nature of opinion no matter how strongly and unqualifiedly expressed. 80 Given the function being performed in their making - ie the provision of information and guidance - there was the likelihood that the decisions would influence, the more so, as ESAA emphasises, because of the standing of the body from which the published views emanated. But even if it be assumed that the views expressed were relied upon as authoritative and did influence behaviour (so enhancing the risk of claims being made against suppliers) this would not give to the Publication Decisions themselves such "real and practical consequences" as would transform them into reviewable decisions: cf Attorney-General of the Commonwealth v Queensland, above, at 142. Those consequences may have been likely effects to be expected - and even intended - from the performance of the information providing and educational functions that the Act required of the ACCC. But the heightening of the risk of consumer claims as a consequence of the provision of information and education that the Legislature intended be provided cannot reasonably be said to bestow on the Publication Decisions a determinative character. 81 The decisions may have encouraged the assertion of alleged rights and hence the need for ESAA and the electricity suppliers to respond. But it was for a court of competent jurisdiction to determine what those rights were in a given case and, by so doing, to expose the correctness of, or vice in, the ACCC's views. The Publication Decisions themselves changed nothing in relation to the subject matter to which they were addressed - ie the rights and obligations of consumers and suppliers in relation to damage caused by power surges. Nor did they have any operative function to perform in establishing what those rights and obligations might be in a given case: cf the ruling in Attorney-General of the Commonwealth v Queensland, above, and the report to the Minister in Kelson v Forward,above. The decisions did not in themselves have such real and practical consequences as could justify characterising them as having the "quality of finality". And such likely but incidental consequences flowing from consumers etc being informed and deciding to act upon the ACCC's published views cannot be relied upon to give the Publication Decisions this quality of finality. These were merely effects of the provision of information and education. They were not hallmarks of a final or operative and determinative decision. 82 Though I have concluded that the Publication Decisions were not decisions under an enactment for ADJR Act purposes there are several additional considerations bearing on that conclusion to which it is appropriate that I refer briefly. The range of "decisions" taken by the ACCC and its officers in providing information and guidance to consumers etc is so diverse and sufficiently voluminous as to raise the spectre of significant "disruption of the [ACCC's] activities" were such decisions to be characterised as "reviewable decisions" for ADJR Act purposes: cf Salerno v National Crime Authority, above, at 143. To make every such "decision" examinable by the Court could put in peril the very information and educational services that the TP Act requires. For my own part, it would require significant textual and contextual indications (which clearly are lacking here) before I would be prepared to conclude that such decisions were nonetheless properly to be characterised as reviewable decisions. 83 The ESAA does not shrink from submitting that it would be salutary for such decisions to be so examinable because of the standing of the ACCC and of its capacity to influence consumers. The ESAA has in this gone so far as to invite me to depart from the Bond "finality" principle in any event so as to expose the ACCC to ADJR Act review. 84 The ACCC in performing its s 28 functions is performing a public function using public resources in furtherance of a public interest identified by Parliament in the TP Act itself. It goes without saying that it is entirely proper and constitutionally necessary that the ACCC and its officials be subjected to an appropriate mix of regulation and review by the Parliament, the Executive and the courts to ensure that they do not abuse, or miscarry significantly in the performance of, those functions. The ACCC is, after all, a servant of, and is ultimately accountable to, the Australian community. My finding that, in performing the functions in question in this case, the ACCC is not subject to the ADJR Act does not carry with it the consequence that it is thus relieved from any form of judicial supervision in the performance of that function. The ACCC and/or its officers, for example, remain potentially liable either criminally or civilly for misfeasance in public office for egregious abuses of their functions: see eg Sanders v Snell (1998) 196 CLR 329. They may likewise be exposed to tortious liability in some circumstances for negligent misstatements etc: see eg San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340; etc. My conclusion is, merely, that one statutorily created form of judicial supervision is not available against the ACCC because of limitations that have been imposed on that supervision. Those limitations I am obliged to respect. Whether judicial supervision of some other type should be enhanced in consequence is not a matter that has been agitated in this proceeding and I express no view on it. 85 Finally, for the sake of completeness, I would again note that the ACCC has submitted that the Publication Decisions, when viewed in the context of the dispute with the ESAA and its members that led to their being made, should properly be characterised in the main as having been made as an incident of the Commission's policing/enforcement function. While I refrain from expressing a concluded view on this submission - it is unnecessary given my findings and would involve a separate analysis of each of the numerous publications in issue in this proceeding - I incline to the view that quite some number of publications (and especially some of those made in correspondence with ESAA and its members and with consumers) should be so characterised in the way proposed. 86 The conclusion at which I have arrived, I should add, makes it unnecessary for the purposes of this part of ESAA's ADJR Act claim to determine whether the publications of the "views" attributed to the ACCC either by ESAA or by the ACCC itself contain incorrect statements of law. The Remaining ADJR Act Claims: the Threat and the Undertaking Decisions 87 The "Threat Decisions" I can describe compendiously as (a) threats made by the ACCC to initiate or to cause the initiation of legal action against the ESAA and some or all of its members for contraventions of s 52, s 53(g) or s 55 of the TP Act in the event of ESAA and/or its members publishing a view of the liability of suppliers to customers under s 71 of the Act in terms not consistent with the Absolute Liability view; and (b) the ACCC's refusal to revoke the threat of legal action as was sought in ESAA's letter to the ACCC of 28 January 1999 in the event of a supplier publishing a view in terms consistent with the ESAA view. 88 The "Undertaking Decision", which also was a consequence of the letter from ESAA's solicitors above, was the ACCC's decision not to give ESAA an undertaking that it, the ACCC, would no longer publish its erroneous view. 89 Both claims can be disposed of shortly. The Undertaking Decision can stand in no better position than the "decision" to which in turn it is related, ie a decision to publish the ACCC's views. As I have indicated, the Publication Decisions were not reviewable decisions. It is, in consequence, not arguable that the Undertaking Decision was itself either a final reviewable decision or else an intermediate reviewable decision specifically required to be made under s 28(1) of the TP Act. Likewise, because it did not lead to a reviewable decision, it cannot constitute conduct engaged in for the purpose of making a reviewable decision: TP Act, s 6; and see Collie v Behan (1997) 25 ACSR 644. 90 In relation to the Threat Decisions, though the ACCC has denied that threats were made in fact, I am prepared to assume that some at least of the ACCC's communications could properly be interpreted as constituting a threat of legal action if a view contrary to the ACCC's was published by a supplier. I would refer, by way of example, to the ACCC's letter of 1 May 1997 to ESAA and the electricity companies that is referred to in the "Chronology" above at [35]. 91 To the extent that the Threat Decisions can properly be referred to a statutorily conferred function of the ACCC, it can only be to the enforcement function that inheres (inter alia) in the power to take, or to cause the initiation of, proceedings in relation to alleged contraventions of the TP Act: see s 79, s 80 and s 87 of the Act. Clearly, a threat of enforcement proceedings, could not itself be characterised as a final or operative and determinative decision. At best it would be an antecedent decision foreshadowing a decision that might, with greater or lesser likelihood (depending on the circumstances), be taken in the future to initiate proceedings. Such an antecedent decision could not itself be a reviewable one. It would not determine anything. It would involve no substantive determination: Hutchins v Commissioner of Taxation, above, at 274; McLachlan v Australian Securities and Investments Commission, above, at 426-427. Still less could a threat decision be said to be an intermediate reviewable decision the ACCC was required by the TP Act to make: Bond's case, at 337; and cf Meredith v Commissioner of Taxation of the Commonwealth of Australia [2001] FCA 1135 at [20]-[21]. 92 To recharacterise the threat as "conduct" so as to attempt to attract s 6 of the ADJR Act would, in my view, be equally unavailing. Section 6 "conduct" must be engaged in "for the purpose of making" a reviewable decision, that decision being, seemingly, a decision to initiate proceedings. It must, furthermore, relate to "the procedure which the decision-maker engages in for the purpose of making the relevant decision": New South Wales Aboriginal Land Council v Aboriginal and Torres Straight Islander Commission (1995) 131 ALR 559 at 570; Bond's case, at 341-342. 93 A threat to initiate proceedings would not satisfy either of the above requirements. Though an indication that a decision may or will be made in the future, the making of threats cannot properly be characterised as a procedure engaged in "for the purpose of making that decision". It more closely approximates to the formation of an "in principle" view (a) which is communicated to the person against whom a later decision might be taken and (b) which is designed to avert, if possible, the need for such a later decision. Moreover, while threats may serve some strategic purpose in the performance of the ACCC's functions, their making cannot on the evidence before me properly be said to be a procedure engaged in for the purpose of making (if such be necessary) a decision to initiate proceedings against ESAA and/or its members. The threat decisions are not, relevantly, reviewable decisions or s 6 conduct. Distinctly there is a very real question as to whether a decision to take proceedings to enforce the Act would itself be a reviewable decision. It is unnecessary that I decide this question. By so doing I do not intend to cast any doubt upon the significant authority reflecting such a contention: see Giraffe World v Australian Competition and Consumer Commission, above; Ruddy v Deputy Commissioner of Taxation,above. The Common Law Claim 94 The burden of this claim has evolved somewhat during the course of this proceeding. As I understand it as put in submissions, and subject to a qualification I later note, it is and remains tied to an alleged infringement by the ACCC of s 28(1) of the TP Act and especially of s 28(1)(e). The claim itself is founded on the principle of the Bateman's Bay case that a party with a sufficient special interest in the matter has standing to seek equitable (and declaratory) relief in respect of a public authority's non-observance of statutory limitations placed upon its activities. In the instant case it is submitted that the words in s 28 prescribe limits to what can be done by the ACCC in (inter alia) making "general information" available to interested persons and the public: s 28(1)(a) and (d); and in "[making] known for the guidance of consumers the rights and obligations of persons under provisions" of (inter alia) the TP Act: s 28(1)(e). 95 As pleaded, the Bateman's Bay claim drew upon all of the matters challenged in the ADJR Act claims (ie the publications by the ACCC, the threats made to ESAA and its members and the ACCC's refusal to give the undertakings sought in the 28 January 1999 letter of ESAA's solicitors). In part at least, the apparent purpose of this seems to have been to emphasise ESAA's "special interest" in the matter and to particularise the forms of allegedly ultra vires activities in which the ACCC was engaged. Though the pleading does not so indicate in express terms, the statutory provision it is alleged that the ACCC exceeded is s 28 and that excess resulted (i) from its acting upon an erroneous view of the proper meaning and application of s 71 of the TP Act; or (ii) possibly, it would seem, from its pursuing an ulterior purpose unauthorised by s 28(1). The claim, I would note, has not been linked expressly to alleged ultra vires activities in the performance of the ACCC's enforcement/policing functions. Before dealing with each of the two grounds of ultra vires advanced by ESAA, I need to refer to one preliminary matter. It relates to this Court's jurisdiction to entertain the claim and to ESAA's standing to maintain it. 96 To the extent that the common law claim challenges decisions of the ACCC purportedly made in excess of limitations imposed by, or else colourably made under, s 28 of the TP Act there is, potentially, an available basis for attracting the original jurisdiction of this Court under s 39B(1A)(c) of the Judiciary Act 1903 - subject of course to that challenge involving a justiciable controversy (or "matter") in respect of which ESAA has standing in the proceeding brought. To the extent that the common law claim is unrelated to s 28 (a matter referred to below), only this Court's accrued jurisdiction could be invoked (if at all) to sustain that claim. I would note as well that the ACCC, being a body corporate, is not an officer of the Commonwealth for the purposes of s 39B(1) of the Judiciary Act 1903: Vietnam Veterans' Affairs Association of Australia New South Wales Branch Inc v Cohen (1996) 70 FCR 419 at 432. 97 The questions whether there is a justiciable controversy in respect of which ESAA has standing and in relation to which the Court would in any event grant discretionary relief are intertwined in the various Bateman's Bay claims advanced: cf Croome v The State of Tasmania (1997) 191 CLR 119 at 132. But to reiterate what I said earlier in these reasons, rather than attempt to unravel these questions at this point it is convenient to assume them favourably to ESAA for the moment so as to expose what are the essential vices in the substantive claims themselves. I take this course because of the overlap in the substance of the common law and the s 163A claims. ESAA seems clearly to have standing to make a s 163A claim. (i) An erroneous view of the law 98 Assuming that the ACCC had published either the Absolute Liability view (which is denied) or the ACCC view (which is admitted) and that both views erroneously stated the law, for ESAA to make out its ultra vires claim it would need to show - questions of justiciable controversy and standing apart - both that the ACCC's publications were made under s 28 of the TP Act and that the section itself imposed on the ACCC a limiting requirement of accuracy in the statements it made about the law and in the types of "general information" the section envisages being provided by the ACCC. 99 The ACCC contends that neither of these requirements can be met. First, its various publications in relation to the liability of electricity suppliers and the rights of consumers were, in the setting of the controversy concerning supplier liability, properly to be seen as involving the discharge of its policing and enforcement function. It did not relate as such to the s 28 information/education functions even though the publications may have been informative to, and educative of, the public. 100 Secondly, even if the publications were to be regarded as having been authorised by s 28, the section does not condition the validity of statements made about consumer rights etc on the accuracy of those statements. Given the nature of the information provided (it is in the nature of opinion about rights etc) and the diverse circumstances in which information can be provided (consumer inquiry, press release etc), Parliament could not have intended to subject the ACCC to a requirement of accuracy in making and publishing statements under s 28 such that inaccuracy would render the provision of information ultra vires. 101 For my own part, even assuming that some of the ACCC's publications could properly be characterised as ones made in the discharge of its s 28(1) functions only - and I make no actual finding to that effect - I do not consider that s 28(1) imposes the limiting requirement of accuracy on which ESAA's submission is predicated. 102 I have already indicated that I incline to the view that the functions specified in s 28(1) should be characterised as duties of the ACCC. They are, nonetheless, duties that do not indicate expressly how, when (save for s 28(1)(b) and (ca)) and in what manner the various functions are to be discharged. This is to be expected given that, as functions entrusted to the ACCC, it is for that body to determine such matters consistent with its obligation to discharge the duties in question. But there is distinctly, as I will indicate, an elipsis in the language used in s 28(1)(e), Parliament having left unstated some portion of what it meant or must be taken to have meant: Bennion, Statutory Interpretation, 382, (3rd ed, 1997); Evans, Statutory Interpretation, 150ff (1988); Burrows, Statute Law in New Zealand, 196 (2nd ed, 1999). Necessarily, resort must in consequence be had to the process of implication, implication being merely the meaning that context and purpose add to express (dictionary) meaning: see Dickerson, "The Diseases of Legislative Language" as reprinted in Sutherland, Statutory Construction, 679 at 688 (5th ed, 1991); Burrows, above, at 196; Spigelman, "Statutory Interpretation - Identifying the Linguistic Register", (1999) 4 Newcastle Law Review 1 at 8. So understood, I should add, implication is merely an aspect of that "part of the ordinary process of legislative construction [which is] to qualify the generality of words": Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275 at 279: see also Pearce and Geddes, Statutory Interpretation in Australia, s2.5 (4th ed, 1996). 103 It is the case that the information providing function imposed by s 28(1)(e) is susceptible of a literal construction that would only permit the ACCC "to make known for the guidance of consumers the rights and obligations of persons under provisions of laws in force" etc that are the actual rights and obligations enjoyed by, or imposed on, those persons. However, when one has regard to the nature of the function itself and to its purpose, such a construction must be far removed from what the general words of the sub-clause were intended actually to convey. 104 The purpose stated in the s 28(1)(e) function - "to make known for the guidance of consumers" etc - clearly encompasses more than the provision to consumers of unexplained and unillustrated texts of statutes that confer rights and impose obligations that are designed to protect the interests of consumers. Consistent with the general object of the TP Act stated in s 2 - "to enhance the welfare of Australians through … provision for consumer protection" - the s 28(1)(e) function is in its setting properly to be characterised as one that is intended to be educative and exegetical. And given that it relates to the description and explanation of the nature and content of rights and obligations - rights and obligations the incidents and application of which it is for courts and not for the ACCC authoritatively to declare - Parliament could not be taken to have intended that the content of such information as the ACCC provided in performing this function was only authorised by the TP Act to the extent that its correctness could withstand subsequent challenge in legal proceedings. If such was the case an important dimension of the educative function itself could be put at risk in that the venturing of any view (necessarily by way of opinion) on the law and its applications would, potentially, be susceptible to challenge. 105 The obvious premise of s 28(1)(e) is that the ACCC, as a specialist body, would take proper and appropriate steps to ensure it had an informed understanding of consumer laws and, in light thereof, would perform its educative/informing function responsibly and effectively. But Parliament could not be taken to have intended by the language of s 28(1)(e), that the function itself required that the information furnished by the ACCC would be error-free. The very subject matter of the information (ie the incidents of legal rights and obligations) would ordinarily preclude the ACCC itself from being able to give such a guarantee. The language of s 28(1)(e) in its context simply does not require the attribution to Parliament of an intent so compromising of the function itself. The contrary is the case. Implicitly, it authorises statements of opinion by the ACCC: cf s 14ZAAE of the Taxation Administration Act 1953 (Cth); statements that may, in the event, be proved to be erroneous. 106 I reject the construction ESAA seeks to have placed on s 28(1)(e). I should add that the other information providing provisions of s 28(1) - ie subclauses (a) and (d) - are equally incapable of sustaining ESAA's challenge to the ACCC's publications in this case. Their terms are such that I doubt they are of relevance to the present case in any event. (ii) An Ulterior Purpose 107 In sharp contrast to the pleading of the ADJR Act claim, it is quite difficult to discern from the pleadings what are the precise grounds relied upon to substantiate the common law claims. At the hearing the issue of construction I considered above emerged clearly enough. But that was not the only ground prosecuted by ESAA, though only one other - that of ulterior purpose - seems to have remained in serious contention. It requires brief mention. 108 During submissions ESAA acquitted the ACCC of any charge of dishonesty or bad faith - a charge previous made in its Submissions in Reply of 11 April 2001. Nonetheless, both the pleadings and the submissions referred to an alleged improper purpose in making the Publication and/or Threat Decisions. 109 I have referred by way of illustration to comments made by, or attributable to, Professor Fels or the ACCC that are said to evidence "risk allocation" or "customer service" purposes being entertained by the ACCC. As I understand such improper purpose allegation as has been persisted in, it is that the Publication and Threat Decisions were made in tandem to advance the two purposes I have mentioned, neither purpose being allowed by the TP Act: on improper purposes, see generally Aronson and Dyer, Judicial Review of Administrative Action, 246ff (2nd ed, 2000). 110 There is in my view a short answer to this claim. It may have been the case that Professor Fels and the ACCC appeared to be prosecuting a particular agenda which they considered to represent a good policy outcome in terms of risk allocation for power surges - as witness Mr Burmester QC's inference to this effect in his advice to the Minister referred to at [39] above. There is, though, clear evidence to support a finding that the view(s) of the law that the ACCC entertained resulted in, or could lead to, outcomes which were considered by it to be congenial and which, in consequence, probably gave some impetus to the ACCC's publication of its view(s). But if such can properly be characterised as prosecuting an agenda, I am satisfied that that agenda was itself founded upon, and was able to be prosecuted as a consequence of, legal advice which the ACCC could and did reasonably accept (other views to the contrary notwithstanding). It may have acted with what has been referred to as zealotry. But there was no reviewable impropriety in that. The outcome it desired to secure inhered in (ie the risk allocation purpose), or else was a reasonable response to (ie the customer service purpose), the law as they understood it to be in light of the legal advice it accepted. (iii) Conclusions 111 Consistently with what I have said in relation to the ADJR Act claims, my conclusions here do not carry with them the consequence that the ACCC is immune from legal challenge when performing its s 28 function. Insofar as the common law claim is concerned, my conclusion is merely that it cannot be challenged on either of the bases proposed by ESAA that have been considered above. 112 I earlier indicated that the ESAA's claim was, with one qualification, based on s 28. The qualification to which I will now refer only emerged during the hearing itself and was the subject of supplementary written submissions. It related directly to the threats of prosecution and/or civil proceedings. The Threats 113 The ACCC is not empowered to enforce directly the warranties of Division 2 of Part V of the TP Act. For this reason, in its dealings with ESAA and the suppliers, it looked to those provisions of the Act - s 52, s 53(g) and s 55 - which it could enforce directly against them. And it is the case, as the 1 May 1997 letter to the ESAA illustrates, that the ACCC made plain that it would avail of those provisions should ESAA or the suppliers make representations to consumers about the manner of application of the provisions of Division 2 to electricity supply contracts that were, in the ACCC's view, "misleading or deceptive" etc (s 52), false (s 53) or "liable to mislead" (s 55). That stance, necessarily, was predicated upon the ACCC's own view, first, of the applicability of Division 2 of Part 5 to electricity supply contracts with consumers and, then, on the proper application of s 71 to such contracts. 114 The significance of the ACCC's "threats" to invoke its enforcement powers changed somewhat during the hearing. As pleaded the threats were challenged (a) as being outside the scope of the powers of the ACCC under the TP Act because they were premised upon an incorrect view of the law and (b) as being an improper exercise of any power the ACCC had to make such threats in that they were made to discourage publications of views contrary to that of the ACCC and to cause a market response by suppliers not authorised by law. No power to make valid threats was identified in the pleadings. 115 The first of the above challenges, though not expressly so stated, appeared to rely primarily upon lack of authorisation for such of the threats as were published under s 28 of the TP Act, those published threats being premised on an erroneous view of the law. I would merely say of this in passing that such a challenge must fail for the reasons I have already given in relation to s 28. To the extent that the challenge went beyond s 28, it is by no means clear what statutory power of the ACCC could be said to have been exceeded in the making of the threats. Equally no independent principle of the common law (eg some species of duress) was relied upon to provide possible justification for the award of injunctive (or declaratory) relief. 116 The second challenge - again based upon an abuse of an unspecified power - while focussing on intended consequences of the threats, seems ultimately to be premised on the ACCC's erroneous view of the law or else on the ulterior purpose to which I referred earlier. 117 What I would wish to emphasise about both challenges is that neither was predicated upon the apprehended commission of some future wrong (eg a civil or criminal misfeasance in public office or an abuse of process by the ACCC: cf Williams v Spautz (1992) 174 CLR 509) which this proceeding was designed to anticipate. Rather what was alleged was that the threats were "invalid" at the time of their making. 118 During the hearing, ESAA conceded that the ACCC had reasonable grounds for its view that electricity was a "good" for the purposes of Division 2, Part V of the TP Act and that the ACCC had not acted dishonestly in making the statements it had. Correspondingly, and I will have more to say about this matter below under the heading "Matters of Public Administration", the ACCC in turn acknowledge that the ESAA's views on Division 2, Part V of the TP Act were based on respectable opinions of counsel that were not incorrect beyond argument. This latter acknowledgement brought to the fore an issue which, though previously raised, had not assumed real significance in its own right. 119 As now put by ESAA, that issue is that, with both the ACCC and ESAA holding opposing opinions on the law (each based on "respectable legal opinion" and neither being unreasonable), there could be no question of misleading or deceptive conduct or of false or misleading representations being raised against ESAA and the suppliers, yet such action has been threatened. By analogy with the decision of the High Court in Croome v Tasmania,above, it is said ESAA thus has standing in a matter arising under the TP Act (see Judiciary Act, 1903 (Cth) s 39B(1A)) to justify the award of the injunctive and declaratory relief sought on account of the ACCC's making the threats. 120 There is a short answer to this. Whether or not the making of a statement, including a statement of opinion, is misleading or deceptive or false for the purposes of s 52, s 53(g) and s 55 is a question of fact to be determined having regard to the manner and context of its making: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1992) 149 CLR 191 at 199. It is the lack of an actual statement made in an actual factual setting, which statement is said to be misleading or deceptive or false, that robs the submission of one part of its essential underpinning. The relevant question in a s 52 case, for example, would not be whether the opinions of those Queens Counsel who advised ESAA and the suppliers were misleading or deceptive, but whether any particular statement made by ESAA in a particular setting in reliance upon them (whether correctly so or not) was misleading or deceptive. The question ESAA seeks to have resolved cannot be answered in the abstract as a hypothetical question. There is no actual statement here. I need only point by way of illustration of the importance of the requirement of an actual statement, to the degree to which Professor Fels strayed (in some of his media releases and statements) from the substance of the advices that informed the "ACCC view". He was constrained to acknowledge this in giving evidence as I will later note. 121 It may well be the case that were proceedings to be instituted in a given instance the ACCC would have minimal prospects of success because in its setting the particular representation made by the ESAA or by a supplier was properly to be characterised as one of declared opinion actually based on reasonable grounds and not capable of conveying a misrepresentation (whether or not the opinion was correct): cf MGICA (1992) Ltd v Kenny & Good Pty Ltd (1996) 140 ALR 313 at 356. In finding that such a statement of opinion did not contravene s 52 for example, a court, I would emphasise, would not necessarily be required to give a definitive interpretation of the applicability and/or manner of application of s 71 of the TP Act to electricity supply contracts with consumers. 122 The present is not a Croome type case. Paralleling the concern of that case, ESAA might wish to be delivered from the spectre of future proceedings (civil or criminal) against it. But, unlike in the circumstances in Croome, ESAA's amenability to suit cannot be determined in anticipation (given what is required to be proved to establish breaches of s 52, s 53(g) or s 55 of the TP Act) in respect of an as yet unmade statement that may or may not in its setting properly be characterised as conveying a misrepresentation. What in substance is a negative declaration cannot be made in such a factual vacuum: see Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 355-356; Hamersley Iron Pty Ltd v National Competition Council (1999) 164 ALR 203 at 224; on negative declarations see generally Zamir & Woolf, The Declaratory Judgment, 166ff (2nd ed, 1993). 123 Perhaps anticipating the difficulties to which I have adverted and which were raised by the ACCC in its supplementary submissions, ESAA seems in the end in its supplementary submission to have fallen back on s 28(1) and especially on sub-clause (e) as a "source of the standards by which "invalidity" of ACCC's conduct is asserted" even in relation to the threats. For the reasons I earlier gave that section can offer ESAA no comfort in this matter. 124 Accordingly I reject the common law claims. The s 163A Claim 125 I have set out the provisions of this section in the "Statutory Setting" above at [15]. Here I need merely reemphasise that in relation to matters arising under the TP Act, the section authorises the making of a declaration "in relation to the validity of any act or thing" done, or proposed or purported to be done under the Act. For present purposes I am prepared to assume, as ESAA has submitted, that an invalid act in this setting is one that is not within power or that is not done pursuant to law. 126 In light of my earlier findings and conclusions this claim can be disposed of shortly. The allegedly invalid acts relied upon are, as I apprehend them, the ACCC's erroneous publications made without the authorisation of s 28 of the TP Act. I have already indicated that no breach of s 28 has been made out. For this reason, even assuming the incorrectness of both the Absolute Liability view and the ACCC view, the s 163A claim must be dismissed.

Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission

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Judgment (17 paragraphs)

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Cases Cited (36)

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