McGraw-Hinds (Aust) Pty Ltd v Smith

[13]

The case for the respondent was based upon the receipt through the post by an officer of the Queensland Government Tourist Bureau in Brisbane of a document that was sent or purported to have been sent by or on behalf of the appellant. The document bore the heading "International Telex Directory", followed by the statement that the directory was published by the appellant whose address in Sydney was given. It was addressed to "Queensland Government Tourist Board". It included, in a prominent position, the words "Invoice/Statement"; in form it resembled an invoice or statement of account and showed "Reference Number", "Annual Subscription" (viz., $68.50), "Previous Balance" (viz., nil) and "Total" (viz., $68.50) in such a way that at a cursory glance it might have suggested that the total mentioned was due for payment. However, there appeared prominently, in capital letters, the following words: "If the entry is desired please use the payment advice slip attached to this statement. This is not a demand or claim for payment of the amount shown." In smaller type there appeared the words "Contract and Invoice terms overleaf". On the reverse of the document there were some numbered paragraphs, including the following: "1. Upon payment of the pro-forma offered on reverse side your name and information as indicated will be included in our international directory." The "payment advice slip" attached to this document was in fact a duplicate "Invoice/Statement"; the amounts opposite the words "Annual Subscription" and "Total" were however blank, possibly because of imperfect reproduction. The appellant is a company registered in New South Wales. There was no proof that the appellant sent the document, but it was admitted in evidence under the evidentiary provisions contained in s. 15 of the Act. There is no "Queensland Government Tourist Board", but it is not contested that the document was intended to be addressed to the Queensland Government Tourist Bureau, an unincorporated organization which is an agency of the Crown in the right of the State of Queensland. The appellant did not attempt to suggest that it had reasonable cause to believe that a note complying with s. 7 had been signed.

[14]

The first submission on behalf of the appellant is that s. 8 does not apply where the assertion of a right to payment is made against the Crown. This submission is based on the premise that as a general rule the same meaning should be given to the same word wherever it occurs in a statute, especially if it occurs more than once in the same section. It is not disputed that s. 8 of the Act does not bind the Crown - see s. 13 of the Acts Interpretation Act, 1954 Q., as amended. It is argued that this means that the word "person" where it last appears in s. 8(1), and where it appears on the second and third occasions in s. 8(2), does not refer to the Crown, and that for this reason "person" where it appears elsewhere in the section similarly does not refer to the Crown. This argument cannot be accepted. The rule that the same words which occur in different parts of a statute have the same meaning is one which "must yield to the requirements of the context" (Madras Electric Supply Corporation Ltd. v. Boarland [1] ); it is "only a presumption" (Littlewoods Mail Order Stores Ltd. v. Inland Revenue Commissioners [2] ). It is well recognized that a word may be used in two different senses in the same section of the one Act: see the cases cited in Craies on Statute Law, 7th ed. (1971), p. 169. If it is right to say that person in s. 8 in some places means "person other than the Crown", that is only because of the circumstance that the Act does not bind the Crown. The fact that an offence is one that may not be committed by the Crown is no reason for concluding that it may not be committed against the Crown. It would be irrational to hold that because the word "person", when used to refer to the offender, does not include the Crown, therefore the word, when used to refer to the victim of the offence, also does not include the Crown. There is no reason why the prohibitions contained in the section should not apply when the person against whom the right to payment is asserted is an agency of the Crown. The section is quite generally expressed and it is impossible to conclude that the legislature intended to create an exception in favour of offences committed against the Crown. The first submission made on behalf of the appellant therefore fails.

[20]

However, when the second limb of s. 8(3) operates in conjunction with sub-ss. (1) and (2) of s. 8 the legislation goes further. The document which may not then be sent, unless the sender has reasonable cause to believe that a note complying with s. 7 has been signed, is a document that "sets out the price for the making of the directory entry " If these words are given their natural meaning it is enough that the document is one that states the price. The phrase "sets out" may not be altogether appropriate when one item only is to be enumerated, but it carries no suggestion that there should be an assertion or implication that the price set out ought to be paid. I am unable to construe the second limb as though "price" were followed by the words "which is claimed to be payable". The word "price", when applied to property, may mean the amount payable for something already sold, or the amount that the owner of property expects to receive for it if and when he sells it. When, as here, the word is used in relation to a service, it may similarly mean the amount that will be charged if the service is requested and performed. The first limb of s. 8(3) expressly refers to a writing that asserts or implies that payment of a charge or fee should be made, and the second limb would add nothing to the sub-section if it also referred only to a writing that set out the price in such a way as to assert or imply that it should be paid. The context provided by the first limb of s. 8(3) strongly supports the conclusion that the words of the second limb should be given their ordinary meaning. They refer to a document which contains an express statement of the price for making the entry, and therefore includes a document which informs the person to whom it is addressed what amount he would have to pay if he requested that an entry be made and it was made. This would appear to mean that it would be an offence for one person to send to another a note complying with s. 7 for the purpose of having it signed. However, it does not follow that this construction of s. 8(3) would render s. 7 unworkable, since obviously it would be possible for the person ordering the service to prepare the note for himself. It cannot be denied that the construction which I have suggested should be put on the second limb of s. 8(3) is an inconvenient one, but it is the construction to which the words of the section plainly lead.

[35]

The respective functions of sub-ss. (2) and (3) of s. 8 are of importance. Sub-section (2), without more, has no operative effect. All it does is to deem a "prescribed document" to be such an assertion as sub-s. (1) speaks of. But because it attaches no meaning to "prescribed document" it is, on its own, inoperative. Standing alone its deeming effect will never result in anything being deemed an "assertion". Sub-section (3) serves the sole function of giving operative effect to sub-s. (2). It does so by assigning two alternative meanings to "prescribed document". That it should supply two meanings rather than only one, and in that sense operate in two limbs, follows from the form taken by sub-s. (2), which is itself concerned with two distinct situations. The first is that of the receipt of a prescribed document relating to a directory entry, sent by a person who has made that entry. The second is that of the receipt of a prescribed document, again relating to a directory entry but in this case sent by a person who proposes to make that entry. The first concerns an entry already made, the second an entry to be made in the future. Then, when sub-s. (3) supplies two meanings to the phrase "prescribed document", it conforms to this temporal distinction, already established in sub-s. (2). It accordingly describes two types of document. The first is a writing asserting or implying that payment of a charge or fee should be made by the recipient for the making of the directory entry: that applies to the case of an entry proposed to be made. The second is a writing which is not concerned with any assertion or implication that payment of a charge or fee should be made but which, instead, "sets out the price for the making of the directory entry ". It applies to the case of an entry already made, hence the change of language which occurs, the shift from the making of an assertion or implication that payment of a fee or charge should be made, appropriate words for a service to be rendered in the future, to the setting out of "the price for the making" of an entry, appropriate to describe the price of completed work.

[70]

The constitutional issue raised by the case is accordingly confined to the question whether s. 92 invalidates the provisions of s. 8 of the Act to the extent that they create an offence in relation to the receipt of a document setting out the price for the making of a directory entry. It was argued for the respondent that s. 8 does not strike at anything which is an essential element of trade, commerce and intercourse among the States, and hence is incapable of infringing s. 92. The suggestion was that the receipt of a prescribed document is something which stands outside the strict conception of interstate trade and commerce which has prevailed for the purposes of s. 92. The answer to this argument is that the prohibition against receipt is, in truth, a prohibition against the despatch or delivery of a prescribed document, and that the despatch and delivery of communications across a State border in the course of commerce, more particularly when those communications are offers capable of being converted into a contract by acceptance, form part of that interstate trade, commerce and intercourse which is protected by s. 92. Just as the movement of goods and persons across a State border is protected by s. 92, so also is the sending of communications, whether the movement across the border takes place pursuant to the requirements of a contract or not. We are not here concerned with the question whether a particular contract forms part of interstate trade, whether the contract calls for the delivery of goods from one State to another and whether, in consequence of that contract, one of the contracting parties is engaged in interstate trade or the transport of the goods forms part of that trade: cf.Samuels v. Readers' Digest Association Pty. Ltd. [11] . We are now concerned with the question whether the sending of an invitation to treat or an offer to contract struck at by s. 8 falls within the protection of s. 92. I need do no more than refer to the observations of Dixon C.J. in Hospital Provident Fund Pty. Ltd. v. Victoria [12] and my comment upon them in H. C. Sleigh Ltd. v. South Australia [13] . A contrary view seems to have been expressed by Kitto J. in his judgment in the Readers' Digest Case [14] , but it was not a view which commended itself to the other members of the Court.

McGraw-Hinds (Aust) Pty Ltd v Smith - [1979] HCA 19 - HCA 1979 case summary — Zoe

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Judgment (135 paragraphs)

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