LANDER and GREENWOOD JJ:
1 We have had the advantage of reading in draft the reasons of Rares J with which we substantially agree and, of course, therefore agree with the orders proposed by his Honour that in respect of both applications:
(a) leave to appeal should be granted; and
(b) the appeal should be dismissed.
2 Although we are of the opinion that these appeals should be dismissed because we respectfully differ from the primary judge, we should shortly state our reasons for doing so.
3 As Rares J has shown the primary judge found that an agency or instrumentality within the meaning of s 3 of the Foreign States Immunities Act 1985 (Cth) must have two features: first, be subject to "actual, day-to-day management control" by the foreign State; and secondly, perform "governmental functions".
4 The purpose of the Foreign States Immunities Act is identified in s 9 of the Foreign States Immunities Act which, subject to the exceptions contained in the Foreign States Immunities Act itself, is to grant foreign States immunity from the jurisdiction of the courts of Australia in a proceeding. "[P]roceeding is defined in s 3 to mean:
... a proceeding in a court but does not include a prosecution for an offence or an appeal or other proceeding in the nature of an appeal in relation to such a prosecution.
5 The grant of immunity is in relation to the civil side of the jurisdiction of the courts of Australia because proceeding does not include a prosecution for an offence. A number of Commonwealth Acts provide for the imposition of pecuniary penalties where a contravention of the Act is established. Section 76 of the Trade Practices Act 1974 (Cth) is an instance of legislation of that kind in that it provides for the provision of a pecuniary penalty for a contravention of Part IV of the Trade Practices Act, which part includes s 45 which proscribes contracts, arrangements or understandings that restrict dealings or affect competition. A contravention of s 45 may attract a pecuniary penalty. However, no criminal proceedings lie against a person for a contravention of Part IV of the Trade Practices Act: s 78 of the Trade Practices Act. A proceeding brought by the respondent against a party seeking the imposition of a pecuniary penalty is a civil proceeding. A civil proceeding for the imposition of a pecuniary penalty is therefore a proceeding to which the Foreign States Immunities Act might apply.
6 The scheme of the Foreign States Immunities Act is demonstrated by reference to Part II of the Foreign States Immunities Act which contains s 9 which gives a foreign State immunity from the jurisdiction of the courts of Australia in a proceeding.
7 Section 9 provides:
9 General immunity from jurisdiction
Except as provided by or under this Act, a foreign State is immune from the jurisdiction of the courts of Australia in a proceeding.
8 A "foreign State" is defined in s 3 to mean:
... a country the territory of which is outside Australia, being a country that is:
(a) an independent sovereign state; or
(b) a separate territory (whether or not it is self-governing) that is not part of an independent sovereign state.
9 The definition only recognises a country that is an independent foreign State or a country that is a separate territory that is not part of an independent foreign State.
10 Section 3(3) also refers to foreign States. It provides:
(3) Unless the contrary intention appears, a reference in this Act to a foreign State includes a reference to:
(a) a province, state, self-governing territory or other political subdivision (by whatever name known) of a foreign State;
(b) the head of a foreign State, or of a political subdivision of a foreign State, in his or her public capacity; and
(c) the executive government or part of the executive government of a foreign State or of a political subdivision of a foreign State, including a department or organ of the executive government of a foreign State or subdivision;
but does not include a reference to a separate entity of a foreign State.
11 That subsection makes it clear that when the Act addresses a foreign State it is not referring to a separate entity of a foreign State unless the provision in the Act expresses a contrary intention.
12 The immunity which is addressed in s 9 is the immunity existing at common law that an independent sovereign State may not be directly or indirectly proceeded against in the courts without its consent: Compania Vaiera Vascongada v Steamship Cristina [1938] AC 485. The "pure absolute doctrine of state immunity" as Lord Wilberforce described it in Playa Largo (Owners of Cargo lateley laden on Board) v I Congreso del Partido (Owners) (I Congreso del Partido) (1983) 1 AC 244 at 261 has in more recent years become subject to restrictions: see Philippine Admiral v Wallem Shipping [1977] AC 373 and Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529. However, the scheme of the Act is such that s 9 states in absolute terms, subject to the point already made about a prosecution for an offence, the sovereign State's immunity in the courts of Australia.
13 Section 9 itself however recognises that the Act provides for exceptions to the recognition of absolute immunity.
14 Where the exception applies, the foreign State is not entitled to immunity from the jurisdiction of the courts of Australia in a proceeding of the kind defined in s 3. Before identifying the exceptions it should be noted that some of the exceptions contain exclusions which means that the exceptions do not apply in the circumstances of the exclusion. When a section provides for both an exception and an exclusion to the exception, the foreign State will enjoy immunity from jurisdiction to the extent of the circumstances mentioned in the exclusion.
15 The exceptions to the absolute grant of immunity are:
(a) where the foreign State submits to the jurisdiction of the court or waives its immunity: s 10;
(b) where the proceeding concerns a commercial transaction as defined in s 11(3): s 11;
(c) where the proceeding concerns the employment of a person under a contract of employment where the foreign State was a party to the contract and was the employer: s 12;
(d) where the proceeding concerns a death of or personal injury to a person or a loss or damage to tangible property in Australia: s 13;
(e) where the proceeding concerns an interest of a foreign State in the possession or use by the foreign State of immovable property in Australia or an obligation of the foreign State that arises out of its interest in or possession or use of immovable property: s 14(f);
(f) where the proceeding concerns an interest of the foreign State in property that arose by way of gift or succession: s 14(2);
(g) where the proceeding concerns bankruptcy, insolvency or the winding up of a body corporate or the administration of a trust or the estate of a deceased person or of a person of unsound mind: s 14(7);
(h) where the proceeding concerns the ownership of a copyright or the registration or protection in Australia of an invention, a design or trade mark where the infringer is alleged to be the foreign State or the proceeding concerns the use in Australia of a trade name or business name: s 15;
(i) where the proceeding concerns a foreign State's membership or right to membership of a body corporate or an unincorporated body or partnership that is incorporated or has been established under the laws of Australia or is controlled from, or has a principal place of business in Australia where one of the members is not a foreign State or the Commonwealth and the proceeding arises between the foreign State and the body or other members of the body, or between the foreign State and one or more of the partners: s 16;
(j) where a foreign State is a party to an agreement to submit a dispute to arbitration the immunity does not extend to a proceeding for the exercise of the supervisory jurisdiction of a court in respect of that arbitration: s 17(1);
(k) where the foreign State is a party to an agreement to submit a dispute to arbitration then subject to any inconsistent provision in the agreement the immunity does not extend to a proceeding concerning the recognition as binding for any purpose or for the enforcement of an award: s 17(2);
(l) where the proceeding is an action in rem against a ship concerning a claim in connection with the ship if, at the time when the cause of action arose, the ship was in use for commercial purposes: s 18;
(m) where a bill of exchange has been drawn, made, issued or indorsed by a foreign State and the foreign State would not be immune in a proceeding insofar as the proceeding concerns the transaction or event: s 19;
(n) where the proceeding concerns an obligation imposed upon the foreign State by or under a provision of a law of Australia with respect to taxation: s 20;and
(o) where the proceeding is a related proceeding that arises out of and relates to any of the proceedings in ss 10 to 20: s 21.
16 Many of the exceptions have subsections which provide exclusions; viz s 11(2), s 12(3), s 12(4), s 12(5), s 12(6), s 15(2) and s 17(3). Only two of those are relevant in a consideration of these proceedings: subpar 11(2)(a)(i) and subs 17(3).
17 On the face of it, s 9 and ss 10 to 21 only apply to foreign States which, because of s 3(3) unless there be a contrary intention in the Act, does not include a separate entity of the foreign State.
18 However, s 22 of the Act provides:
22 Application of Part to separate entities
The preceding provisions of this Part (other than subparagraph 11(2)(a)(i), paragraph 16(1)(a) and subsection 17(3)) apply in relation to a separate entity of a foreign State as they apply in relation to the foreign State.
19 Importantly, because s 9 is included in the same Part, the provisions in ss 9 to 21, except those identified in s 22, apply in relation to a separate entity of a foreign State as they apply in relation to the foreign State.
20 Section 11(2)(a)(i) and s 17(3) are two of the exclusions to the exceptions to which we have referred. Section 16(1)(a) is part of the body of the exception in that section.
21 Two of the exclusions to two exceptions do not apply to a separate entity of a foreign State which has the result that in those two cases a separate entity does not enjoy the immunity that a foreign State enjoys. In the case of s 11(2)(a), a foreign State does enjoy an immunity from the jurisdiction of the courts of Australia in a proceeding if the proceeding concerns a commercial transaction and all of the parties to the proceeding are foreign States or foreign States and the Commonwealth. However, because of the provision of s 22 a separate entity will not enjoy that immunity if it is a party to a proceeding of the kind mentioned in s 11(2)(a). The effect of s 17(3) is to preserve a foreign State's claim for immunity in a proceeding concerning an arbitration where the only parties are the foreign State and the Commonwealth or an organisation of foreign States and the Commonwealth, and other foreign States. Because of the provisions of s 22, if the contracting party is a separate entity and the Commonwealth or an organisation which includes a separate entity or the Commonwealth and a separate entity, the separate entity does not enjoy the like immunity that a foreign State enjoys.
22 However, in the case of s 16(1)(a), a separate entity, unlike a foreign State, would be immune in a proceeding concerning its membership of body corporate, unincorporated body or a partnership incorporated or controlled in Australia that has a member that is not the separate entity or the Commonwealth in a proceeding between the separate entity and the members or parties as the case may be.
23 "[S]eparate entity" is defined in s 3:
separate entity, in relation to a foreign State, means a natural person (other than an Australian citizen), or a body corporate or corporation sole (other than a body corporate or corporation sole that has been established by or under a law of Australia), who or that:
(a) is an agency or instrumentality of the foreign State; and
(b) is not a department or organ of the executive government of the foreign State.
24 It is further defined in s 3(2):
(2) For the purposes of the definition of separate entity in subsection (1), a natural person who is, or a body corporate or a corporation sole that is, an agency of more than one foreign State shall be taken to be a separate entity of each of the foreign States.
25 For ease of reference we shall refer to a body corporate or a corporation sole simply as a corporation.
26 The definition of separate entity provides the following information. First, a separate entity is not a foreign State. Secondly, a separate entity may be a natural person other than an Australian citizen. Thirdly, a separate entity may be a corporation other than a corporation that has been established by or under a law of Australia. Fourthly, a separate entity may be a natural person or a corporation that is an agency of more than one foreign State and in that case shall be taken to be a separate entity of each of the foreign States. Fifthly, a natural person or a corporation is a separate entity if the natural person or corporation is an agency or instrumentality of the foreign State and, as well, is not a department or organ of the executive government of that foreign State.
27 Those propositions show that the purpose of the Act is to extend immunity to persons who are not Australian citizens or corporations not established under Australian law who have the character in paragraphs (a) and (b) of the definition. They must not be departments or organs of the executive government of the foreign State but they must be an agency or instrumentality of the foreign State.
28 An agency or instrumentality of the foreign State could be a department or organ of the executive government of the foreign State but if the agency or instrumentality has that character then it is not a separate entity for the purposes of the Act. However, the Act clearly contemplates that there are agencies or instrumentalities of the foreign State which are not departments or organs of the executive government of the foreign State.
29 Moreover, because of the provisions of s 3(2) of the Act, a separate entity may include a natural person or a corporation that is an agency of more than one foreign State and in that case should be taken to be a separate entity of each of the foreign States. Because s 3(2) only refers to "an agency" it must be assumed that Parliament did not contemplate that an instrumentality could be an instrumentality of more than one foreign State. That characteristic has been reserved to "an agency".
30 An agency must be something other than an instrumentality. That follows for two reasons. First, the Act refers to both in the same context which leads to the conclusion there is something to distinguish the two bodies. The general rule is that in construing a statutory provision all words should be given a meaning. No word should be considered superfluous: The Commonwealth v Baume (1905) 2 CLR 405 per Griffith CJ at 414; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. McHugh, Gummow, Kirby and Hayne JJ said at 382:
Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision.
31 The general rule is subject to the qualification that if there is good reason to the contrary it may be presumed that a word or phrase adds nothing: Chu Khenghim v The Minister for Immigration (1992) 176 CLR 1 per Mason CJ at 12-13. The second reason to which we now turn provides independent support for the application of the general principle.
32 Section 3(2) assumes that an agency might be an agency of more than one foreign State but does not make the same assumption in relation to an instrumentality. Section 3(2) treats an agency and instrumentality as having at least that different characteristic.
33 Justice Ligertwood recognised that an instrumentality (a term not known to English law but derived from American decisions) differed from a servant or agent of the Crown in Electricity Trust of South Australia v Linterns Ltd [1950] SASR 133 at 139 where he referred to the decisions of the High Court in the Municipal Employees Case (1919) 26 CLR 508 and said the members of that Court had given the word "instrumentality" the same generic meaning, being an organ of government. He said:
The case is useful in that it indicates that a State instrumentality need not necessarily be a servant or agent of the Crown.
34 Justice Rares has suggested that the words "agency" and "instrumentality" are "largely synonymous" and he has referred to the Macquarie and Oxford English dictionaries.
35 With respect to his Honour, we do not think, at least for the purposes of this Act for the reasons we have given, that the words can be treated as largely synonymous. We think the Foreign States Immunities Act assumes an agency and an instrumentality to be different creations. In considering whether a person or corporation is a separate entity, the definition first requires a determination as to whether that person or corporation is an agency or instrumentality of the State.
36 We think the difference is in their constitution. An instrumentality is a body created by the State as an instrumentality for the purpose of performing a function for the State. Clearly, because of the definition of separate entity, the State can create a natural person as an instrumentality. We think the definition does assume that a natural person can be an instrumentality because it speaks of a natural person or a [corporation] "who or that: ...". However, that does not deny the proposition that the State creates the natural person or the corporation as the instrumentality of the State. An instrumentality of the State cannot be created by an organ other than the State. A natural person or a corporation cannot create an instrumentality and certainly not an instrumentality of the State.
37 An instrumentality is created by the State for the purpose of carrying out functions on behalf of the State and is not available to carry out any functions for any other State, person or corporation. An instrumentality is an instrumentality of the State which creates it and can not be the instrumentality of any other State, person or corporation. So much is recognised by s 3(2) which does not recognise the possibility of an instrumentality being an instrumentality of more than one foreign State.
38 An instrumentality is not necessarily an agency of the State because it may be invested by the State with powers which allow it to function separately and apart from the State and indeed outside of any direct control of the State or its executive.
39 An agency may have the same characteristics as an instrumentality, but not necessarily so. An agency of the State, in our opinion, does not necessarily have to have been created by the State itself. It may be, but need not be. A natural person or a corporation may create a body which may be adopted by the State as an agency. A natural person or corporation becomes an agency of the State upon creation if the State itself creates it as such. If it is otherwise created, it becomes an agency of the State when the State adopts the person or corporation as an agency of the State. The State might adopt the person or corporation exclusively or it might create a shared agency with some other State, person or corporation. The difference between an agency or instrumentality is recognised in s 3(2).
40 A State may appoint a natural person or corporation as an agency or agent. The relationship between the State and the appointed agency may be contractual. An agency of a foreign State in the context of this definition and in the context of the Foreign States Immunities Act as a whole must be an agency of the foreign State for the purpose of carrying out the foreign State's purposes.
41 The purpose of an instrumentality is to serve the State's purposes: Electricity Trust of South Australia v Linterns Ltd [1950] SASR 133 at 139-140; Re Anti-Cancer Council of Victoria; Ex parte State Public Services Federation (1992) 175 CLR 442 at 448. Whether a person or corporation is an agency or an instrumentality, they must both have the same purpose which is, whilst not being departments or organs of the executive government of the foreign State, to serve some governmental purpose which may be commercial in nature. For an instrumentality its sole purpose must be to perform functions on behalf of the State. For an agency its purpose must be to perform within the terms of its agency functions on behalf of the State which has created the agency.
42 The most relevant factor in determining whether a natural person or a corporation is an agency or instrumentality is whether that body is carrying out the foreign State's functions or purposes.
43 Ordinarily, if the natural person or the corporation is not then it is unlikely that the natural person or corporation will be an agency or instrumentality of the foreign State.
44 Ownership cannot be determinative of the question whether a person or corporation is an agency or instrumentality of a foreign State. A natural person will not have an owner. Australian law does not countenance ownership of a person. An instrumentality will usually be created by legislation. It may have "an owner". In many cases it will not have "an owner" but will simply be a creation of statute. An agency may or may not be owned by the State. If it is then it is more likely to be found to be an agency of the State. But if it is not owned by the State that is not determinative of the question whether the person or corporation is an agency of the State. The agency might exist as a result of a contractual relationship between the State and the person or corporation. It follows that ownership cannot be the sole criteria in determining whether a natural person or a corporation is an agency or instrumentality of a foreign State.
45 Nor does the Act contemplate that a natural person or a corporation must be controlled by a foreign State to be an agency or instrumentality of the State. For the reasons already given, an instrumentality need not be controlled by the State even if the executive of the State has the right to appoint the directors of the organisation. An agency may or may not be controlled by the State but the absence of control would not necessarily mean that the person or corporation is not an agency of the State. Section 3(2) contemplates that a person or corporation may be a separate entity where it is the agency of more than one foreign State. Where a natural person or corporation is an agency of that kind it would be difficult for each of the foreign States to exercise control at the same time.
46 Like Rares J, we do not, with respect, agree with the primary judge that the test whether a natural person or a corporation of the kind referred to in the definition is to be determined by reference to whether the foreign State has the day-to-day management control of the agency or instrumentality. We think, as we have said, such a holding is inconsistent with s 3(2), which contemplates that a separate entity may be the agency of more than one foreign State and, indeed, numerous foreign States, not all of which presumably would have the actual day-to-day control of that foreign entity.
47 Ownership and control will be important in determining whether a natural person or a corporation is an agency or instrumentality of a foreign State. However neither, in our opinion, can be determinative factors.
48 We agree with Rares J that it will be a matter of fact in each case to determine whether a natural person or corporation is an agency or instrumentality of a foreign State and in determining that question regard will have to be had to ownership, control, the functions which the natural person or corporation perform, the foreign State's purposes in supporting the natural person or corporation and the manner in which the natural person or corporation conducts itself or its business.
49 We agree, for the reasons given by Rares J, that PT Garuda Indonesia Ltd (Garuda) was a separate entity. We also agree with Rares J that Malaysian Airline Systems Berhard (MAS) failed to establish that it was an agency or instrumentality at the relevant time or at the time of the institution of the proceedings.
50 We therefore disagree with the primary judge's conclusion in relation to Garuda but agree with his conclusion in relation to MAS.
51 It is therefore not strictly necessary to consider whether MAS was entitled to any immunity having regard to s 11 of the Act because MAS was not at the relevant times an agency or instrumentality of a foreign State and not therefore entitled to the extended immunity given by s 22 to a separate entity.
52 It is, however, necessary to consider that question in relation to Garuda because Garuda was a foreign entity for the purpose of the definition at the relevant time. Garuda was therefore entitled to say that it was entitled to the immunity given by s 9. The question with respect to Garuda was whether the immunity was lost because the proceeding concerned a commercial transaction: s 11.
53 If we are wrong and MAS was at the relevant time a separate entity, the opinion which follows would also apply to it.
54 We agree with Rares J's conclusion that s 11(1) does apply and that, as a consequence, neither Garuda nor MAS are entitled to immunity from the jurisdiction of the Court even if MAS, like Garuda, is a separate entity.
55 As we have previously explained, s 9 provides a grant of immunity to a foreign State or a separate entity from the jurisdiction of the courts of Australia in a proceeding. Sections 10 to 21 except from that general grant a proceeding which concerns the separate matters contained in those various sections.
56 Section 11 is the relevant exception in relation to both airlines and it provides:
11 Commercial transactions
(1) A foreign State is not immune in a proceeding in so far as the proceeding concerns a commercial transaction.
(2) Subsection (1) does not apply:
(a) if all the parties to the proceeding:
(i) are foreign States or are the Commonwealth and one or more foreign States; or
(ii) have otherwise agreed in writing; or
(b) in so far as the proceeding concerns a payment in respect of a grant, a scholarship, a pension or a payment of a like kind.
(3) In this section, commercial transaction means a commercial, trading, business, professional or industrial or like transaction into which the foreign State has entered or a like activity in which the State has engaged and, without limiting the generality of the foregoing, includes:
(a) a contract for the supply of goods or services;
(b) an agreement for a loan or some other transaction for or in respect of the provision of finance; and
(c) a guarantee or indemnity in respect of a financial obligation; but does not include a contract of employment or a bill of exchange.
57 We have already addressed s 11(2)(a)(i) which does not apply to a separate entity: s 22. No more needs to be said about that subparagraph.
58 Garuda and MAS (if it were a separate entity) will not be entitled to claim the immunity given by s 9 if the proceeding concerns a commercial transaction as defined in s 11(3). The question is whether the proceeding brought by the respondent, an independent regulator, concerns a commercial transaction.
59 The proceedings for which immunity is claimed were commenced by the respondent in respect of Garuda on 2 September 2009 and in respect of MAS on 9 April 2010. The respondent claims that both Garuda and MAS were parties to various price fixing, market sharing and other anti-competitive cartels with other airlines which had had the effect of increasing the price of air cargo on various routes in and out of Australia. The respondent alleges that the conduct contravenes s 45 of the Trade Practices Act and has sought injunctions restraining both Garuda and MAS from engaging in the cartel conduct, declaratory relief that both Garuda and MAS have contravened s 45 of the Trade Practices Act, and for the imposition of civil penalties under s 76 of the Trade Practices Act in respect of the proved contraventions.
60 The contravention which the respondent alleges is a contravention of s 45 of the Trade Practices Act. The relief which is sought is in respect of that contravention.
61 Shortly put, s 45 makes it unlawful for a corporation to make a contract or arrangement or arrive at an understanding, a provision of which would be likely to have the effect of substantially lessening competition, or to give effect to such a provision.
62 It seems to us that a contract arrangement or understanding of that kind is a commercial transaction within the meaning of s 11(3) whether it is a transaction which contravenes s 45 of the Act or otherwise. If it is established by the respondent that Garuda or MAS made a contract or an arrangement or arrived at an understanding of the kind that increased the price of air cargo carried on various routes, any contract or arrangement would be an activity in which the foreign entity has entered for the supply of goods and services and would clearly come within s 11(3)(a). Even if the respondent only establishes that Garuda and MAS arrived at an understanding with other airlines to the same effect, in our opinion, that understanding would be caught by s 11(3). True it is, it would not be a contract for the supply of goods or services as provided for in s 11(3)(a) but it would be a transaction of the kind mentioned in the body of s 11(3) which is not limited by the paragraphs in that subsection. The paragraphs in s 11(3) do not limit the types of transactions to which s 11(3) apply. A commercial transaction is not limited to a contract or agreement, although paragraphs (a) and (b) apply to a particular contract or a particular agreement. Section 11(3) otherwise refers to commercial transactions being commercial, trading, business, professional or industrial transactions.
63 It would be curious if the effect of s 11 is to except from the general claim for immunity a lawful transaction for the provisions of services but provides an immunity for a contract, arrangement or understanding which is unlawful.
64 In our opinion, the conduct complained of by the Australian Competition and Consumer Commission is conduct which concerns a commercial transaction and in those circumstances the immunity claimed by Garuda and MAS could not be upheld even if we are wrong about our opinion that MAS is not a foreign entity.
65 As Rares J has shown, the primary judge followed the obiter dicta remarks of Lord Millett in Holland v Lampen-Woolfe (2000) 1 WLR 1573 at 1587. In that case, the plaintiff brought proceedings for defamation against a fellow employee of the United States government who had published a memorandum about the plaintiff's conduct as an instructor. The relevant United Kingdom Act was in similar form to the Foreign States Immunities Act providing an absolute grant of immunity and their exceptions take in Part II of the Foreign States Immunities Act. The exception is the immunity was "as respects proceedings relating to (a) a commercial transaction entered into by the State". Lord Millett was of the opinion that although the plaintiff's employment contract was a commercial contract for the purpose of the UK Act, proceedings for defamation "do not relate to that contract": at 1587. He said, "They are not about the contract but the memorandum": at 1587. With respect, that proposition is undoubtedly right but the decision does not support the conclusion reached by the primary judge that the proceeding with which this Court is concerned does not concern a commercial transaction but concerns the anti-competitive effect of that transaction.
66 The proceeding which has generated the claims for immunity are for a contravention of s 45 of the Trade Practices Act for making a contract or arrangement or arriving at an understanding which is proscribed by s 45 of the Trade Practices Act. A contravention is not established unless the contract arrangement or understanding substantially lessens competition. However, the contract arrangement or understanding has to be examined and analysed to determine if that be so. The proceeding concerns a commercial transaction.
67 We agree generally with Rares J's reasons but in these short reasons we have explained why we have come to the same conclusion as his Honour.
68 We agree with the orders proposed by Rares J as to the costs of the applications for leave to appeal and the appeals.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Lander and Greenwood.