Melbourne Home of Ford Pty Ltd v. Trade Practices Commission & Anor [1980] FCA 115

Federal Court of Australia|1980-08-21|Before: Fisher JJ, Smithers J

Notice under s.155 Trade Practices Act 1974 - Validity of notice and lack of specificity - Whether information and documents required by Commissioner relate to "matter that constitutes or may constitute a camtravention of s.45" - Relevance of burden of providing documents and information - relationship between s.155 notice and

Melbourne Home of Ford Pty.Ltd. & Ors. vw. Trade Practices Commission & Anor.

COL PAIGE FORD PT¥.LID., SLEEMAN FORD PTY.LTD., HOLMESFORD PTY.LTD., DUHIG FORD PTY.LTD., GLEN HOLDINGS (VICTORIA) PTY.LTD., RETELL FORD PTY.LTD., ALAN COFFEY MOTORS (RINGWOOD) PTY. LIMITED,

ALAN COFFEY MOTORS (DANDENONG) PTY.LIMITED, COOPER FORD PTY.LTD., NEW OAKLEIGH MOTORS PROPRIETARY LIMITED, BAYFORD MOTORS PTY. LTD., KEN FOSTER MOTORS PTY.LTD.,

B.S. STILLWELL FORD PTY.LTD. ,ETHERIDGE PROPRIETARY LIMITED, BRIAN WOOD FORD PROPRIETARY LIMITED, CC COURTNEY & PATTERSON MOTORS PROPRIETARY RY LIMITED, MORLEY FORD PTY.LTD., FRANZ BERD PROPRIETARY LIMITED, LYON BROS.MOTORS PROPRIETARY LIMITED

The appellants pay to the respondents their costs of

BETWEEN : MELBOURNE HOME OF FORD PTY.LTD., COL PAIGE FORD PTY.LTD., SLEEMAN FORD PTY.LTD., HOLMESFORD PTY.LTD., DUHIG FORD PTY.LTD., GEEN HOLDINGS (VICTORIA) PTY.LTD., RETELL FORD PTY.LTD., ALAN COFFEY MOTORS (RINGWOOD) PTY.LIMITED, ALAN COFFEY MOTORS (DANDENONG) PTY. LIMITED, COOPER FORD PTY.LTD., NEW OAKLEITGH MOTORS PROPRIETARY LIMITED, BAYFORD MOTORS PTY.LTD., KEN FOSTER MOTORS PTY.LTD., B.S. STILLWELL FORD PTY.LTD., ETHERIDGE PROPRIETARY LIMITED, BRIAN WOOD FORD PROPRIETARY LIMITED, COURTNEY & PATTERSON MOTORS PROPRIETARY LIMITED, MORLEY FORD PTY.LTD., FRANZ BIRD PROPRIETARY LIMITED, LYON BROS. MOTORS PROPRIETARY

LIMITED Appellants AND : TRADE PRACTICES COMMISSION AND RONALD MOORE BANNERMAN Respondents CORAM : Brennan, Keely and Fisher JJ.

This case concerns the validity, effect and operation of notices to the applicants purportedly given under the powers

conferred by s.155 of the Trade Practices Act 1974 (Cth.) by

Mr. Bannerman, the second respondent as chairman of the Trade Practices Commission, the first respondent.

It comes on appeal from a judgment of Smithers J. who traced the course of the litigation im his reasons for

" On 28 July 1978 the Chairman of the Trade Practices Commission (the Chairman) purported to issue a notice under s.155(1) of the Trade Practices Act (the Act) toa number of companies who may be called collectively if not entirely accurately "the Ford dealers". That notice required each of the companies to furnish information to the Trade Practices Commission (the Commission) by 28 August 1978 as requested aun the first Schedule to the notice and to produce the documents described in the second Schedule to the Notice. A number of recipients of the notice issued applications under s.163A of the Act for declarations that for varlous reasons the notices were invalid. At the request of the Commission and the Chairman, the Ford dealers not opposing, I stated a case for the Full Court raising questions concerning the validity of the notices and the obligations of the companies thereunder. On 28 March, 1979 the Full Court answered the questioms... In general the answers given by the Pull Court do not in any way lend aid to the Ford dealers' application under s.163A. "

The notices were given to the respective respondents in a common form, and the terms of each notice

Pursuant to section 155 of the Trade Practices Act 1974 (hereinafter referred to as 'the Act'), I, RONALD MOORE BANNERMAN, Chairman of the Trade Practices Commission, having reason to believe that Col, Paige Ford Pty.Ltd. (hereinafter referred to as 'the company') is capable of furnishing information and producing documents relating to matters that constitute, or may constitute a contravention by the company of section 45 of the Act, namely,

that the company has given effect to a provision of an arrangement or understanding between the company and other corporations, which has the purpose, or has or is likely to have the effect, of fixing, controlling or Maintaining the prices for Ford spare parts supplied by those corporations, in competition with each other, to motor vehicle body repairers in Melbourne,

HEREBY REQUIRE the company to furnish to the Trade Practices Commission the information specified in Schedule I to this Notice, in writing signed by a competent officer of the company, by handing the said information to MORRIS HAIM BRODER, LENEANE JAYNE. CHOONG or ALAN RAYMOND DUCRET, members of the staff assisting the Commission and acting on its behalf, at the Office of the Commssion at 3rd Floor, 99 Queen Street, Melbourne, on Monday the 28th day of August 1978, between the hours of 10.00 a.m, and 4.00 p.m.,

AND I HEREBY REQUIRE the company to produce all documents specified in Schedule II to this Notice in the possession, power or control of the company to the said MORRIS HAIM BRODER, LENEANE JAYNE CHOONG or

ALAN RAYMOND DUCRET at the Office of the Commission at 3rd Floor, 99 Queen Street, Melbourne on Monday the 28th day of August 1978, between the hours of 10.00 a.m. and 4.00 p.m.

"Ford spare parts' means any electrical, mechanical or structural component of Ford motor vehicles and includes body panels, accessories and mechanical parts;

'motor vehicle body repairer' means a person carrying on the business of repairing or otherwise restoring damaged motor vehicles;

"supplier' means a person carrying on a business which includes the business of supplying Ford spare parts to motor vehicle body repairers;

'person' includes a body corporate as well as a natural person;

communication' includes correspondence, circulars, notices, letters, memoranda, minutes, notes,

telegrams or telex messages, and oral conversations, including conversations at meetings or by telephone;

' document' includes originals or copies (whether copied on paper, disc, tape, microfische or other device from which sounds, images or messages are capable of being reproduced) of correspondence, circulars, notices, memoranda, notes and minutes of meetings, other notes including diary notes, telex messages or telegrams, notes of telephone conversations or other oral conversations;

'terms or conditions' include those relating to discounts, allowances, rebates or credits given or allowed in relation to the supply of Ford spare parts;

the singular includes the plural and the plural includes the singular.

Insofar as any information specified in Schedule I to this Notice 1S contained in a document produced in compliance with Schedule II to this Notice, the information may be furnished by identifying the document and referring to it, provided that -

(1) the date it originated; (1i) the person who originated it; and

(i11)1f the document was passed to another person, the name of that person; or

(b) those matters are stated when referring to the document.

SCHEDULE I TO NOTICE UNDER SECTION 155 DATED THE 28TH DAY OF JULY 1978

INFORMATION REQUIRED TO BE FURNISHED ON 28 AUGUST 1978

State whether at all times in the period 1 January 1977 to 30 June 1978 (hereinafter referred to as 'the said

period') the company was a body corporate, incorporated in Victoria.

State whether in the said period the company carried on business in Victoria.

If 'Yes' to 2 above, state the nature of the business so carried on by the company in the said period.

State whether since 1 January 1977, any officer, employee or representative of the company has attended any meeting with any officer, employee or other representative of any other supplier, at which any of the following matters was discussed -

(a) the price, terms or conditions (whether suggested, recommended or otherwise) at or subject to which Ford spare parts are, have been, may be or will be sold by -

(1) the company; or (ii) any other supplier, to motor vehicle body repairers;

any changes or proposed changes in the prices, terms or conditions referred to un (a) (1) or (14);

may be or will be sold to motor vehicle body repairers by -

and the prices recommended by Ford Motor Company of Australia Limited as appropriate for the sale of the said parts;

any change or proposed change in any relationship referred to im (c) (i) or (i2);

any matter arising out of proceedings before the Prices Justification Tribunal relating to the prices, terms or conditions at or subject to which motor vehicle spare parts are, have been or may be sold by way of wholesale.

If 'Yes' to 4(a) (i) or (ii), (Bb), (c)(1) or (11), (d) or (e) above, state in respect of each such meeting -

the address of the place where the meeting was held;

the name, address and desigmation of the person who called the meeting;

the name, address and desigmation of each officer, employee or other representative of the company present;

the name, address and designation of each other person present and the name of the supplier represented by that person at the Meeting;

in respect of each person named in response to (e) or (f), the substance of what was said by that person to those present;

whether, to the knowledge of any officer, employee or other representative of the company, any documents were brought into existence that -

(1) recorded in whole or in part the proceedings of the meeting;

(11) otherwise referred, whether directly or indirectly, to anything proposed to be said or done, or said or done at the meeting; and

(i) af 'Yyes' to (h) (i) or (11), in respect of each such document, particulars sufficient to identify -

(1) the date it was originated; (ii) the person who originated it;

(iii) the name and address of the person who has possession, power or control of 1t; and

Insofar as is not stated in response to 4 above, state whether, since 1 January 1977, any communication has passed between any officer, employee or other representative of

the company and any officer, employee or other representative of -

(a) any other supplier; (b) the Australian Automotive Dealers Association; or (c) Ford Motor Company of Australia Limited,

(1) the prices, terms or conditions (whether suggested, recommended or otherwise), at or subject to which Ford spare parts are, have been, may be or will be sold by -

(A) the company; or (B) any other supplier, to motor vehicle body repairers;

(ii) any changes or proposed changes in the prices, terms or conditions referred to un (i) (A) or (B);

(ii1) any relationship between the prices at which Ford spare parts are, have been, may be or will be sold to motor vehicle body repairers by -

and the prices recommended by Ford Motor Company of Australia Limited as appropriate for the sale by suppliers of the said parts;

(iv) any change or proposed change in any relationship referred to in (i11) (A) or (B); or

(v) any matter arising out of proceedings before the Prices Justification Tribunal relating to the prices, terms or conditions at or subject to which motor vehicle spare parts are, have been or may be sold by way of wholesale,

the name, address and designation of any officer, employee or other representative of the company who took part 1n the communication;

the name and designation of any officer, employee or other representative of any other supplier who was a party to the communication together with the name of the supplier represented by that person;

the name and designation of any officer, employee or other representative of -

(a1) Ford Motor Company of Australia Limited, who was a party to the communication;

(b), (c) or (dad), the substance of what was written or said by that person;

whether, to the knowledge of any officer, employee or other representative of the company, any documents were brought into existence that -

(i) recorded the communication in whole or in part; or

(ii) otherwise referred, directly or indirectly, to the communication; and

if 'Yes' to (f)(1) or (11), state in respect of each such document, particulars sufficient to identify -

State whether, since 1 January 1977, the prices charged for Ford spare parts sold by the company to motor vehicle body repairers have been ascertained by calculation from, or by reference to, prices recommended by Ford Motor Company of Australia Limited.

If 'Yes' to 8 above, state full particulars of how the prices charged by the company during January 1977 were ascertained, including particulars of any formula, system or method used in ascertaining the said prices.

State each date since 1 February 1977 on which there has been a change in the formula, system or method referred to in 9 above,

ll. State in respect of each date stated in response to 10 above -

(b) the names of officers and employees of the company who decided to make the said change;

(c) whether at the time of deciding to make the said change any, and if so which, person named in response to (b) believed that other suppliers were likely to make a change to the same effect as that referred to in (a);

(d) if 'Yes' to (c) above, in respect of each such person -

(i) full particulars of the basis for that person's belief;

(11) the names of the suppliers the person believed were likely to make such a change; and

(111) whether the person took the belief into account in deciding to make the change.

If 'No' to 8 above, state full particulars of the

bases upon which the prices charged for Ford spare parts supplied by the company to motor vehicle body repairers

State in respect of each of the following Ford spare parts for a model XC Falcon 500 Sedan -

(d) noo" XC 5420124AA - Front Right Door Shell (e) noo xc 13064¢c - Head Light Rim

the wholesale and retail prices (excluding sales tax) charged by the company on each of the following

dates - (1) 1 October 1976; (ii) 1 February 1977; (1ii) 1 June 1977; (iv) 1 July 1977; (v) 1 August 1977; (vi) 1 September 1977; (vii) 3 October 1977; (viii) 2 November 1977; (ix) 1 December 1977; (x) 1 March 1978; (xi) 3 April 1978; and (x11) 1 June 1978. SCHEDULE II TO NOTICE UNDER SECTION 155 DATED THE 28TH DAY OF JULY 1978 DOCUMENTS REQUIRED TO BE PRODUCED ON 28TH AUGUST a

All documents -

(a) recording in whole or in part the proceedings of; or

(b) otherwise referring, directly or indirectly, to, anything proposed to be said or done, or said or done at,

any Meeting referred to in paragraph 4 of Schedule I to this Notice.

(a) recording in whole or in part; or (b) otherwise referring, directly or indirectly, to,

any communication referred to in paragraph 6 of Schedule I to this Notice.

All documents, including a specimen of all price lists or microfische of price lists, recording or constituting in whole or 1n part any communication passing, since 1 January 1977, between Ford Motor Company of Australia Limited and the company, relating to -

(a) the prices, terms or conditions (whether suggested, recommended or otherwise) at or subject to which

Ford spare parts are, have been, may be or will be sold by -

(b) changes or proposed changes in the prices, terms or conditions referred to in (a) (i) or (11).

All reports, surveys, analyses, submissions, minutes, memoranda, notes or other documents prepared for consideration of officers, employees or other representatives of the company, relating in whole or in part to -

(a) the prices, terms or conditions (whether suggested, recommended or otherwise) at or subject to which Ford spare parts are, have been, may be or will be sold by -

(b) any changes or proposed changes in the prices, terms or conditions referred to in (a) (i) or (11);

(c) any relationship between the prices at which Ford spare parts are, have been, may be or will be sold to motor vehicle body repairers by - -

and the prices recommended by Ford Motor Company of Australia Limited as appropriate for the sale of the said parts;

(d) any change or proposed change in any relationship referred to in (c) (1) or (11);

(e) any matter arising out of proceedings before the Prices Justification Tribunal relating to the prices, terms or conditions at or subject to which motor vehicle spare parts are, have been or may be sold by way of wholesale.

on behalf of the company since 1 January 1977 showing the prices for Ford spare parts sold or offered for sale by the company to motor vehicle body repairers.

Copies of all invoices and cash sales dockets issued by or on behalf of the company in the period

1 dune 1977 to 30 November 1977 in connexion with the supply of Ford spare parts,"

Section 155 of the Act provides, so far as 1s relevant for present purposes, as follows:

"155 (1) Where the Commission, the Chairman or the Deputy Chairman has reason to believe that a person 1s capable of furnishing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of this Act, or is relevant to the making of a decision by the Commission under sub-section 93(3), a member of the Commission may, by notice in writing served on that person, require that person -

(a) to furnish to the Commission, by writing signed by that person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specif1ed in the notice, any such information;

(b) to produce to the Commission, or toa person specified in the notice acting on

its behalf, in accordance with the notice, any such documents; or

(c) to appear before the Commission at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents.

(a) refuse or fail to comply with a notice under this section to the extent that the person is capable of complying with 1t;

(b) 1n purported compliance with such a notice, knowingly furnish information or give evidence that 1s false or misleading; or

(7) A person 1s not excused from furnishing information or producing or permitting the inspection of a document in pursuance of this section on the ground that the information or document may tend to incriminate the person, but the answer by a person to any question asked ina notice under this section or the furnishing by a person of any information in pursuance of such a notice, or any document produced in pursuance of such a notice or made available to an authorized officer for inspection, 1S not admissible in evidence against the person -

corporate - 1n any criminal proceedings other than proceedings under this section; or

(b) in the case of a body corporate - in any criminal proceedings other than proceedings

under this Act. " Section 156 of the Act confers power to inspect, to take

possession of or to take copies of a document produced in

The case stated by Smithers J. was heard by a Full Court, constituted by Smithers, Franki and Northrop JJ. (Melbourne Home

of Ford Pty.Ltd. & Ors v. Trade Practices Commission and Anor.

(1979) ATPR 18080). The Full Court declared, inter alia, in answer to questions 1 and 3 in the stated case, that a notice given under s,155 may lawfully require a company to which it 1s

directed to answer questions, provide information or produce

documents which might tend to expose it to a penalty under ss.45 and 76 of the Act; and that such a notice may lawfully be directed to a company itself suspected (by the Trade Practices Commission or the person giving the notice) of a contravention of the Act. That Court, by a majority

(Franki and Northrop JJ) declined to answer certain other questions relating to the justiciab1lity of the Chairman's reason to believe the matters upon which his power to 1ssue a notice under s.155 depends. The reasons which led their Honours to decline to answer these questions were consonant with the reasons for judgment of the Full Court in the later

case of W.A,Pines Pty.Ltd. v. Bannerman (unreported W.A.3 and

When the application went back for hearing before Smithers J. after the stated case was disposed of, the applicants did not pursue a challenge to the Chairman's power to issue a notice to the applicants under s.155. The attack upon the notice before Smithers J. was based on the terms of the notice itself, and that attack was pursued before us upon the grounds that the notice is so wide, irrelevant, burdensome and oppressive that the notice lay beyond the power which s.155 conferred upon the Chairman. This attack had been raised in one of the questions (question 4) in the stated case, but the parties had not pressed for an answer to the question before

the Full Court. They left 1t until Smithers J. sat to dispose

of the application. His Honour, after giving careful consideration to the submissions made by counsel who then appeared for the applicants, dismissed the application (save in a minor and now immaterial respect). The applicants were

The notice of appeal from the judgment of Smithers J. does not on its face raise any issue which was disposed of by the Full Court. Before Smithers J., as hts Honour observed, counsel who then appeared for the applicants "did not suggest that I could or should disregard the answers of the Full Court." Before this Court, however, counsel for the applicants sought again to agitate questions 1 and 3 though he frankly recognized the difficulties in doing so. He wished to keep those issues alive in the event of a further appeal, and submitted that the Full Court's declaration had been given effect by the final judgment of Smithers J. against which the appeal had been

We declined to allow the questions to be raised again on this appeal. The argument on questions 1 and 3

before the Full Court was calculated to procure a final determination upon the issues of law set aut in those questions: the proceedings before the Full Court were not some

interlocutory step in the vrosecution of the application.

The Full Court, in answering questions 1 and 3, was no doubt exercising original, not appellate, jurisdiction, but the authority of a Full Court 1s not thereby diminished. It is unthinkable that, after questions of law arising 1n litigation have been submitted to a Full Court for determination in order to guide and govern the conduct of the litigation, the authority of the answers given by the Full Court should again be canvassed before another Full Court merely because the latter Full Court is exercising appellate jurisdiction. The answers are clearly the final determinations of the Federal Court upon the issues

in controversy to which the answers relate. Accordingly, although no factual issue 1s in question, it may be said conveniently though loosely that each of the issues determined by the Full Court is res judicata. None of those issues can be reopened in this litigation except by appeal to the High Court of Australia (cf. In Re Waring; Westminster Bank v. Burton-Butler [1948] 1 Ch.221 per Jenkins J. at p.227). 'They were not to be

Having regard to the course which the proceedings had taken, Smithers J. was entitled, and indeed bound, to consider the ultimate challenge to the Chairman's power to give the notices to the applicants, on the footing that none of the applicants was entitled to refuse to furnish information or to produce documents merely because that applicant was suspected of contravening s.45

or because compliance with the notice might tend to expose it to

a penalty. This Court is bound to approach the challenge to the

The course which the litigation has thus far taken narrows the issues for consideration by this Court. Ordinarily, when a question arises as to the validity of a s.155 notice issued under the first limb, three questions fall for

(1} whether there 1s a "matter that constitutes, or may constitute, a contravention";

(2) whether the Commission, the Chairman or the Deputy Chairman (as the case may be) has reason to believe that the person to whom the notice is given "is capable of furnishing information, producing documents or giving evidence relating to" that matter; and

(3) whether the information required to be furnished, the documents required to be produced or the

The first two of these questions are material to the existence of the power to issue a notice, the last to the manner of its exercise. Only the last question falls for determination in these proceedings, namely whether the Chairman has required

each of the applicant companies to furnish information other

than documents relating to a matter that constitutes or may

constitute a contravention, the "matter" being in each case:

of an arrangement or understanding between the company and other corporations which has the purpose, or has or is likely to have the effect,

of fixing, controlling or maintaining the prices for Ford spare parts supplied by those corporations, in competition with each other, to motor vehicle body repairers in Melbourne."

If the information to be furnished or the documents to be produced in accordance with the notice respectively answer the description of "information relating te" or "documents relating to" the matter specified in the notice, the Chairman's requirement lies within the power which s.155 confers upon him. Provided the necessary relationship exists between the matter and the information or documents required, the notice is not open to objection on the ground that it is burdensome to furnish the information or produce the documents. As Bowen C.J. said in

Riley McKay Pty.Ltd. v. Bannerman (1977) 31 F.L.R.129 at p.136:

" It is not, I think, a good ground of objection to a notice under s.155 that it is burdensome or oppresSive. It is clear that when such a notice 1s given, the answering of it may involve the recipient in considerable work and expense. This, in itself, may constitute a kind of penalty whether or not there is ultimately found to have been a contravention. The legislation assumes that the public interest necessitates this. No doubt in practice, the commission will administer the Act in such a way as not to impose upon a person or company a burden completely disproportionate to the value to the commission of the information sought. "

In the case of a matter that may constitute a contravention, the Chairman may not know the constitutive facts of a contravention (if there has been one) and he may ultimately ascertain that there has been no contravention in the conduct or transaction which he is investigating. Because his attention has been drawn to a particular act or transaction which warrants 1nvestigation and because he has reason to believe that the person to whom the notice 1s given is capable of furnishing information relating to the matter under unvestigation he is engaged in a function of investigation, not in a task of proving an allegation. The power conferred by s.155(1) is in aid of that function and is a power which authorizes enquiries both wide 1n scope and indefinite in subject matter. It 1s an investigative power which 1s under consideration here and 1t is not possible to define a priori the limits of an investigation which might properly be made.

In the present case, the investigative power of the Chairman 1S being exercised in an investigation into a matter that may constitute a contravention of s.45. Proof of a contravention of that section often depends upon circumstantial evidence. Section 45 1s itself expressed in general terms, and when an investigation into such a matter commences with littie 1nformation, the range of enquiries

may need to be broad rather than specific. There is no

analogy to be made with interrogatories 1n litigation. Rules which are entirely appropriate to limit discovery with respect to issues defined by pleadings provide no sure guide to the Manner of exercise of a power to ascertain facts which may or May not result in litigation. The investigative power may properly be exercised by enquiring into the existence of facts which do not themselves constitute a contravention or deny the possibility of a contravention. The power may properly be exercised to ascertain facts which may merely indicate a further line of enquiry, or which may tend to prove circumstances from which an inference can be drawn as to the existence of other facts which have a more immediate and proximate relationship to the matter under investigation.

The width of the power and the possibility of its abuse both justify judicial examination of an allegation that the power is used to produce an undue burden or oppression, and render that examination difficult to perform. The necessity for the jurisdiction, and the problems of exercising it are well

reflected in what Ackner J. said in Clinch v. Inland Revenue

The statutory authority in this case 1s in effect to ask questions - to require such particulars as the commissioners think necessary - for the purpose of the chapter dealing with the transfer of assets abroad. The particulars are sought of the intermediary in order that he may be used as a stepping-stone towards obtaining

the more detazled information required by the commissioners to enable them to decide whether or not, 1n their opinion, tax has been unlawfully avo1lded. The information which they require 1s such as to give them a shrewd idea of the

relationship between a taxpayer and a foreign company, partnership, trust or settlement.

Accordingly, 1f the particulars sought went substantially beyond that which was required for this purpose, so that they could be properly described as unduly oppressive or burdensome, I have no doubt that a court would be entitled to intervene, and

declare the notice invalid. One of the vital functions of the courts is to protect the

the way in which an investigation should be carried out, for that 1s a task which the legislature has confided to the Commission, the Chairman or the Deputy Chairman, The Court's jurisdiction is not to set the course of an investigation but to call a halt if it is shown that the investigation exceeds the powers conferred, Short of that point, the protection of the corporate citizen from harassment rests 1n the good sense of the repository of the power. To say that an undue or oppressive burden is imposed by a notice is not legally significant unless what is

Meant is that the powers conferred by s.155 have been exceeded

An excess of power may appear if the requirement for information or documents is couched in such wide and general terms that a proper exercise of the investigatory power could

not support the requirement in question, This 1s but a

particular application of the general principle that the exercise of a discretionary power must be reasonably capable of being regarded as related to the purpose for which the power is conferred (see, e.g., Allen Commercial Constructions

Pty.Ltd. v. North Sydney Municipal Council (1970) 123 C.L.R.

490). If the requirement expressed in a particular notice is reasonably capable of being so regarded, that ground for

It was argued that the sanctions for non-compliance with a s.155 notice necessitated a higher degree of precision in the language of the notice than might otherwise be the case, but in truth the sanction does not affect the dimensions of the power. To the extend to which specificity is required in a notice, 1t 1S required because of the limits of the power conferred by s.155, not because of the sanction imposed for failure to respond to a notice issued in the due exercise of

A particular objection to the width of the notice in the present case was founded on the lack of territorial specificity in the notice. It was said that questions in Schedule I might relate to conduct whach occurred outside the territorial limits to which the provisions of the Act extend, or to which the contravention or possible contravention under

investigation related. Clearly enough, the "matter" specified

in the notice related to the price of Ford spare parts supplied to motor vehicle body repairers in Melbourne, and 1t was conceded that the conduct of Australian corporations wherever occurring which had effect in a market so defined might properly be a matter for investigation (see especially ss.5

and 45(3)). The body of the notice does not refer to that market, and it was submitted that a recipient of the notice could be asked to respond to enquiries with respect to overseas sales, for example. In reply, it was asserted that each of the applicants, according to an inference to be drawn from their names, waS a company carrying on business in the suburbs of Melbourne and that it was fanciful to conjure up foreign activities as illustrative of the width of enquiries said to ke

The argument must be evaluated according to the Meaning which the notices would convey to the recipient. The notices seek the furnishing of commercial information, and the production of documents relating to the matters in respect of which information 1s sought. Notices are to be reasonably, not preciously, construed and the terms used in notices will ordinarily take their meaning from the commercial circumstances in which the notices are given. If, in the circumstances in which an applicant was trading when 1t received the notice, the notice did not convey a requirement which lay within the

power conferred by s.155, 1t was open to that applicant so

to show. But in the absence of that evidence, the requirements are to be construed as relating to the matter specified at the beginning of the notice, that is, as relating to conduct which has effect in the Melbourne market for Ford spare parts. So construed, each of the questions asked (save those parts which are not relevant to this appeal) appear to refer to the possible conduct of the company to which the notice 1s addressed in respect of a possible contravention by 1t of s.45 in the manner specified

There is nothing to show that the information and documents sought by the notices were not required to ascertain whether a contravention of the kind specified in

the notice had occurred, The power was therefore validly

23 pages are a true copy of the Reasons for Judgment herein of the Court.

At a glance

Court

Decision date

Before

Source

Judgment (187 paragraphs)

Cited By (2)