R v Credit Tribunal; Ex parte General Motors Acceptance Corporation

High Court of Australia|1977-06-02|Before: Murphy JJ, Gibbs J, Stephen J, Mason J

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason, Jacobs and Murphy JJ. R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (Australia) [1977] HCA 34

ORDER The Queen v. Credit Tribunal; Ex parte General Motors Acceptance Corporation, Australia. Declare that there is no inconsistency between the provisions of s. 52 (1) and Div. 2 of Pt V of the Trade Practices Act, 1974 Cth and the provisions of the Consumer Credit Act, 1972-1973 S.A.. Remit matter to the Supreme Court of South Australia. Prosecutor to pay respondent's costs of proceedings in this Court. General Motors Acceptance Corporation, Australia v. Credit Tribunal. Declare that there is no inconsistency between the provisions of s. 52 (1) and Div. 2 of Pt V of the Trade Practices Act, 1974 Cth, as amended, and s. 40 of the Consumer Credit Act, 1972-1973 S.A.. Remit matter to the Supreme Court of South Australia. Plaintiff to pay the defendants' costs of the proceedings in this Court. General Motors Acceptance Corporation v. South Australia. Application refused with costs.

Whilst quite clearly the Parliament cannot determine whether or not the legislation of a State is consistent or inconsistent with an Act or Acts of the Parliament, it can assert in its legislation its intention to make its law the exclusive law upon its topic or its intention not to do so. Such an expression of intention in the Act of the Parliament will not, of course, be definitive. But the courts can resort to it in case of uncertainty or ambiguity when the operation of the Act of the Parliament, according to its other terms, has been ascertained and applied. Thus, the statutory expression of Parliament is not invalid nor inoperative. Without being definitive, it may assist in the determination of the operative effect of the Act vis-à-vis the Acts of a State legislature.

For my part, and apart from the presence of s. 75 (1) of the Trade Practices Act 1974 Cth, as amended, I see no inconsistency between the Consumer Credit Act, 1972 S.A., as amended, or the Consumer Transactions Act, 1972 S.A., as amended, and the regulations made thereunder, and the Trade Practices Act. In relation to these conclusions, I have no need to add anything to the reasons expressed by my brother Mason.

I have had the advantage of reading the reasons for judgment which have been prepared by my brother Mason. I agree with them and have nothing to add.

I agree with the reasons for judgment which have been prepared by my brother Mason and with the form of order which he proposes.

The Consumer Credit Act, 1972-1973 S.A. is an Act which is designed to regulate and control the provision of consumer credit. Part III of the Act deals with "Control of Credit Providers", a credit provider being - "(a) a person whose business is, or includes, the provision of credit, or who holds himself out in any way as carrying on that business; and includes - (b) a person who, in the course of a business, enters as vendor into a contract of sale by instalment", according to the definition of that expression contained in s. 5.

Division I of Pt III makes provision for the licensing of credit providers. It is an offence to carry on business as a credit provider or to hold oneself out as carrying on such a business without a licence (s. 28 (1)). An application for a licence to carry on the business of a credit provider is made to the Credit Tribunal (s. 29), a body created by s. 13 of the Act. It is the function of the Tribunal to consider applications for licences. Generally speaking, those persons who are over the age of eighteen years, who are fit and proper persons and who have sufficient financial resources to carry on business in a proper manner under the licence are entitled to the grant of a licence (s. 30). A licence once granted remains in force for twelve months and is eligible for renewal (s. 31).

Division II deals with "Powers of Investigation and Inquiry". Investigations may be initiated by the South Australian Commissioner for Prices and Consumer Affairs ("the Commissioner"), either of his own motion or at the direction of the Tribunal (s. 34). The Tribunal may upon the application of the Commissioner or any other person, or of its own motion, inquire into the conduct of a person licensed under the Act (s. 36 (1)). If the Tribunal, after conducting an inquiry, is satisfied that "proper cause exists for disciplinary action", it may reprimand the person in relation to whom the inquiry was held, impose on him a fine not exceeding $1,000, or suspend or cancel the licence and, in addition, disqualify him from holding a licence (s. 36 (2)). Section 36 (3) provides:

There shall be proper cause for disciplinary action if: -

(b) the credit provider, or any person acting with the authority or upon the instructions, of the credit provider has, in the course of any dealings with a consumer, been guilty of conduct that constitutes a breach of any law, or that unfairly prejudices any rights or interests of the consumer;

The prosecutor, General Motors Acceptance Corporation, Australia ("GMAC") is a credit provider as defined by s. 5. It has been continuously licensed as a credit provider since the Consumer Credit Act came into operation. On 9th October 1975 a summons was issued by the registrar of the Tribunal against GMAC, requiring it to attend at an inquiry pursuant to s. 36 into its conduct to determine whether disciplinary action should be taken on the ground that it had failed to comply with s. 40. That section prescribes the form and contents of a credit contract (not being a sale by instalment). The expression "credit contract" is defined by s. 5 so as to mean:

a contract or agreement (whatever its terms or form may be) under which credit is provided by a credit provider to, or for the use or benefit of, a person (other than a body corporate) and includes a sale by instalment.

In response to a request for particulars the registrar informed GMAC that the Tribunal would inquire whether there had been a breach of (a) that part of s. 40 (1) (b) which requires that the credit contract "must set out the terms and conditions upon which the credit is provided"; and (b) that part of s. 40 (5) which provides that the credit provider shall serve upon the consumer a notice in the prescribed form setting out the provisions of the Consumer Credit Act and the Consumer Transactions Act that afford protection to consumers, that notice being required by reg. 17 of the Consumer Credit Regulations to be in the form of the 13th Schedule to those regulations.

The registrar also indicated that as GMAC had earlier claimed that its credit contracts were sales by instalment and that it had given to consumers a notice in the form of the 14th Schedule to the Consumer Credit Regulations, the Tribunal would have to inquire whether there had been a breach of s. 40 (1) of the Consumer Credit Act, as the form of contract supplied did not appear to contain any reference to a sale of goods by the company to the consumer. Other matters were specified as the subject of the forthcoming inquiry but it is unnecessary to identify them.

The Tribunal then embarked upon the inquiry. Evidence of the following matters was adduced:

(a) That in the course of its business as a licensed credit provider GMAC had entered into credit contracts in South Australia in the form numbered T9A;

(b) That applicants for credit were introduced to GMAC pursuant to agreements or understandings between suppliers of new or second-hand motor vehicles and GMAC;

(d) That the total value of the credit provided in the years ended 31st December 1973 and 1974 exceeded $11 million and $15 million respectively;

(e) That between 3rd September 1973 and 17th October 1975 GMAC sent to each consumer with whom it had entered into a credit contract a notice in the form of the 14th Schedule to the Consumer Credit Regulations;

(f) That in the period already specified GMAC did not send to any of the consumers with whom it had entered into a credit contract a notice in the form of the 13th Schedule to those regulations;

(g) That consumers who entered into credit contracts with GMAC were not shown or supplied with copies of the 21st Schedule to the Consumer Transactions Regulations;

(h) That GMAC has not been convicted of any offence against s. 40 (7) of the Consumer Credit Act with respect to any of the matters already referred to.

Before the inquiry was completed, Zelling J. in the Supreme Court of South Australia on the application of GMAC granted an order nisi for prohibition on 2nd December 1975 against the Tribunal on the grounds, inter alia, that it lacked jurisdiction to hear and determine the matters referred to in the summons or to inquire into GMAC's conduct in relation to the matters set forth in s. 40 of the Consumer Credit Act and that the Consumer Credit Act, in particular ss. 36 and 40, was inconsistent with the Trade Practices Act 1974 Cth, as amended, in particular s. 52 (1), and to that extent was invalid. On the same day his Honour in a suit commenced by GMAC granted an injunction restraining the Tribunal from proceeding further with the inquiry. Later, on 20th May 1976, GMAC commenced proceedings in the Supreme Court against the State of South Australia, seeking a declaration that GMAC was not required to comply with s. 40 (5) of the Consumer Credit Act on the ground that the provisions of that sub-section and the 13th Schedule to the Consumer Credit Regulations were inconsistent with the provisions of the Trade Practices Act.

All three proceedings were then removed into this Court by orders under s. 40 of the Judiciary Act 1903.

GMAC's case that there is inconsistency between the Trade Practices Act and the State legislation rests on several bases. First, it is said that an inconsistency arises from the provisions of s. 40 (5) of the Consumer Credit Act, taken in conjunction with reg. 17 of the regulations under that Act, and the form in the 13th Schedule to which the regulation refers on the one hand and s. 52 (1) of the Trade Practices Act on the other hand. The latter sub-section provides: "A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive." According to GMAC, the 13th Schedule notice, required to be given to the consumer by virtue of the provisions of the Consumer Credit Act and regulations, is misleading in several respects. It therefore conflicts with the command contained in s. 52 (1) of the Trade Practices Act.

Section 40 (5) of the Consumer Credit Act provides:

The credit provider shall, within fourteen days of the formation of a credit contract to which this section applies, serve upon the consumer a copy of the credit contract together with a notice in the prescribed form setting out the provisions of this Act that afford protection to consumers. Penalty: Five hundred dollars. Regulation 17 of the regulations under the Consumer Credit Act provides: The notices to be served by credit providers upon consumers who have entered into the following credit contracts pursuant to the following sections of the Act shall be in the form of and contain the information required by the following schedules appearing below opposite such sections.

Contract Section Schedule A credit contract (not being a sale by instalment) 40 Thirteenth A credit contract that is a sale by instalment 41 Fourteenth

The notice contained in the 13th Schedule contains the heading:

Credit Contract (Not Being a Sale by Instalment) - Notice to Consumer

The Consumer Credit Act, 1972-1973 and the Consumer Transactions Act, 1972-1973 Afford Protection to Consumers in a Number of Ways

Paragraph 2 of the notice states: Where the sale of goods is involved, it is possible to rescind (that is, cancel) your goods contract with your goods supplier within seven days of delivery of the goods (and - if the credit provider is linked with the supplier - your credit contract with your credit provider within the same time), if the goods do not comply with various compulsorily implied conditions required of the supplier as to (1) goods title (2) description and sample (3) merchantable quality and (4) fitness for the particular purpose made known to the supplier. "Goods" include new motor vehicles, but not second-hand ones, which are covered by the Second-hand Motor Vehicles Act, 1971.

To understand GMAC's argument it is necessary to turn to the Consumer Transactions Act, 1972-1973 S.A., a statute which compulsorily implies conditions and warranties in consumer credit contracts. Section 15 (1) of that Act provides that a consumer shall be entitled, within a reasonable time (not exceeding seven days) after the delivery of goods in pursuance of a consumer contract, to rescind the contract on the ground of any breach of condition on the part of the supplier. It may be that the right of rescission conferred by s. 15 (1) for breach of condition is not confined to conditions implied by the Consumer Transactions Act; it may extend to breaches of condition howsoever arising. The conditions compulsorily implied by the Consumer Transactions Act are set out in s. 8. They are as follows:

(1) An implied condition on the part of the supplier in every consumer contract for the sale of goods that in the case of a sale he has a right to sell the goods, and that in the case of an agreement to sell he will have a right to sell the goods at the time when the property is to pass (s. 8 (1) (a));

(2) Where there is a consumer contract for the sale or supply of goods by description an implied condition that the goods shall correspond with the description, and if the contract is made by reference to sample as well as description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description (s. 8 (3));

(3) In every consumer contract for the sale or supply of goods an implied condition that the goods shall be of merchantable quality but no such condition shall be implied -

(a) as regards defects in goods of which the supplier or an agent of the supplier could not reasonably have been aware at the time the contract was made; or

(b) where the consumer has examined the goods or a sample thereof, as regards defects that the examination ought to have revealed (s. 8 (4)); and

(4) Where the consumer makes known to the supplier, or a servant or agent of the supplier, the particular purpose for which the goods are required, so as to show that he relies on the supplier's skill or judgment and the goods are of a description which it is in the course of the supplier's business to supply, an implied condition in the consumer contract that the goods shall be reasonably fit for that purpose (s. 8 (6)).

However, sub-ss. (3), (5) and (6) of s. 8 are expressed not to apply to a consumer contract for the sale of a second-hand vehicle within the meaning of the Second-Hand Vehicles Act, 1971 (s. 8 (7)).

Section 8, like s. 10, appears in Pt II of the Consumer Transactions Act. Section 10 (1) provides that conditions and warranties to be implied in a consumer contract pursuant to the Part may not be excluded, limited or modified by agreement. The conditions implied by s. 8 are therefore compulsorily implied conditions within the meaning of that expression as it is used in the 13th Schedule notice. Section 10 (2) provides that other conditions and warranties in a consumer contract may be excluded, limited or modified, but s. 10 (3) goes on to provide that in legal proceedings the exclusion, limitation or modification shall be regarded as ineffectual unless the attention of the consumer was drawn to it before the formation of the contract.

To this picture certain references to the Trade Practices Act must now be added. That Act implies conditions as to title (s. 69 (1) (a)), that in the case of a contract for the supply (otherwise than by way of sale by auction or sale by competitive tender) by a corporation in the course of a business of goods to a consumer by description the goods will correspond with the description (s. 70 (1)) and as to merchantable quality and fitness where there is a supply (otherwise than by way of sale by auction or sale by competitive tender) of goods by a corporation to a consumer in the course of a business (s. 71).

These conditions, though they are substantially similar to those implied by the Consumer Transactions Act, are somewhat differently expressed. Thus, the condition as to title implied by s. 69 (1) (a), unlike that implied by the State Act, has no application to a contract for the supply of goods by a corporation to a consumer in the case of which there appears from the contract or is to be inferred from the circumstances an intention that the supplier should transfer only such title as he or a third person may have (s. 69 (1) and (3)). Then there is excluded from the operation of the condition as to merchantable quality implied by s. 71 (1) (a) of the Trade Practices Act "defects specifically drawn to the consumer's attention before the contract is made", there being no similar exclusion under the State Act. Conversely, s. 8 (4) of the latter Act, unlike the Trade Practices Act, excludes the operation of the condition as to merchantable quality in relation to "defects in goods of which the supplier or an agent of the supplier could not reasonably have been aware at the time the contract was made". Each Act contains a definition of "merchantable quality", but the terms differ - Trade Practices Act, s. 66 (2); Consumer Transactions Act, s. 8 (5).

Again, there are differences in the conditions implied as to fitness. Under s. 71 (2) of the Trade Practices Act, the condition will be implied if the particular purpose is made known to the corporation or to the person by whom any antecedent negotiations are conducted, whereas under the State Act the purpose must be made known to the seller or his agent (s. 8 (6)). The same distinction is observed in the provisions relating to the consumer's reliance on skill or judgment which, in the case of the State Act, is limited to reliance on the skill or judgment of the vendor or his agent. There is also a difference in the onus. This under the Trade Practices Act rests with the vendor, whereas under the State Act it rests with the consumer.

Quite apart from the differences already noticed, the relevant provisions of the Trade Practices Act have a more restricted operation than the corresponding provisions of the Consumer Transactions Act. The relevant provisions of the Trade Practices Act are expressed to apply to contracts of sale or supply by a corporation. Although s. 6 (2) (h) gives the Act an application to a person not being a corporation, this application is for limited purposes only, being purposes otherwise falling within a head of Commonwealth legislative power, such as the trade and commerce power. Again, the provisions in the Trade Practices Act are more limited in that ss. 70, 71 and 72 dealing with the conditions to be implied in the cases of a contract for the supply of goods by description or by reference to sample, or both, and the implied condition as to merchantable quality and fitness, expressly exclude sale by auction or competitive tender by a corporation, unlike the State legislation which contains no such exclusion.

Granted that these differences do exist between the conditions implied by the Trade Practices Act and those implied by the Consumer Transactions Act, it by no means follows that the 13th Schedule notice is misleading. The heading of the 13th Schedule notice makes it perfectly plain that it is designed to draw attention to protection to consumers afforded by the two State Acts. The heading indicates that the notice is given pursuant to s. 40 (5) of the Consumer Credit Act and it then specifically states that the two Acts " afford protection to consumers in a number of ways ". A person reading the notice in the light of the heading could not fail to conclude that the notice sets out ways in which the two State Acts confer protection on the consumer. There is nothing in the notice to suggest that it purports to be a comprehensive and exhaustive statement of the rights of the consumer under the general law and under relevant Commonwealth legislation or, indeed, that it is a detailed statement of all the rights possessed by a consumer under the two State Acts. The reference to "various compulsorily implied conditions" is obviously a reference to conditions so implied by the two State Acts. There is no justification for reading it as a reference to conditions implied under the Trade Practices Act or under the general law.

Once this view of the 13th Schedule notice is accepted, as I think it must be, it matters not that a consumer may have different rights and protection of a different kind under the Trade Practices Act or the general law. These are matters to which the notice is not directed. Admittedly there are provisions, as I have already noticed, in the Consumer Transactions Act which modify conditions otherwise implied in consumer contracts, but the notice does not refer to them, in conformity with an approach which is confined to dealing with the conditions compulsorily implied by the Consumer Transactions Act itself.

On behalf of GMAC it was suggested that in two other respects the 13th Schedule notice was misleading: first, in that it asserts that a contract for the sale of goods may be rescinded within seven days of delivery of the goods; and secondly, in that it indicates or implies that compulsorily implied conditions affecting second-hand motor vehicles are contained in the Second-Hand Motor Vehicles Act, 1971. Paragraph 2 of the notice does no more than state that it is possible to rescind the contract within seven days of the delivery of the goods. This statement does no more than reflect the provisions of s. 15 of the Consumer Transactions Act in its application to breaches of conditions compulsorily implied under the Consumer Transactions Act. As I have said, the notice does not pretend to be a comprehensive and detailed statement of all the rights which a consumer may possess under the State legislation; it is no more than a brief summary of the rights which the Act confers. When the notice is considered in the light of this character I cannot think that the statement as to rescission is incorrect or misleading, notwithstanding its failure to resolve the question of construction to which s. 15 gives rise, a question to which I adverted earlier.

The Second-Hand Motor Vehicles Act contains no compulsorily implied conditions but this does not give rise to a misstatement in the 13th Schedule notice, because in my opinion the reference to the Second-Hand Motor Vehicles Act involves no implication that any such conditions are implied by that Act. The real defect in the statement contained in the notice lies not so much in the comment that second-hand vehicles are covered by the Second-Hand Motor Vehicles Act as in the assertion that "goods" do not include second-hand motor vehicles. To the extent that this suggests that the Consumer Transactions Act does not apply to second-hand motor vehicles it is incorrect. The statutory definition of goods in s. 5 includes "all chattels personal other than things in action and money"; it does not exclude second-hand motor vehicles. And s. 8 (7) of that Act merely excludes the application of s. 8 (3), (4), (5) and (6); it does not affect the operation of s. 8 (1) (a) which implies a condition as to title in every consumer contract for the sale of goods.

With this possible exception the 13th Schedule notice is neither inaccurate nor misleading. Whether the last sentence in par. 2 is "misleading" within the meaning of s. 52 (1) of the Trade Practices Act is a separate question. "Misleading" is a word which is capable of expressing various shades of meaning, sometimes signifying that which is subjectively misleading and at other times that which is objectively misleading. Its meaning therefore is apt to be influenced, indeed decisively influenced, by the context in which it is found. Here the setting in which s. 52 (1) appears is shown by the headings "Part V - Consumer Protection" and "Division 1 - Unfair Practices". In this context the prohibition contained in the sub-section emerges as an important general prohibition against a corporation in the course of trade or commerce engaged in a form of conduct, a trade practice, which is unfair. The unexpressed assumption which underlies the prohibition is that the conduct so enjoined is not conduct in which the corporation is required to engage by, or under the compulsion of, some other law enacted in the interests of consumers. It is not to be supposed that the very general language of s. 52 (1), containing no reference at all to other statutory requirements, demands that other statutory protection given to consumers shall not be afforded. Indeed, the presence of s. 75 (1), to which I shall refer in more detail subsequently, indicates that it was not intended to displace or qualify the protection given to consumers by State laws.

For these reasons I am of the opinion that the 13th Schedule notice is not misleading.

There remains for consideration the independent question of suggested inconsistency between Commonwealth and State legislation. Before embarking on an examination of this question I should refer specifically to the provisions of s. 75 of the Trade Practices Act. It provides:

(1) Except as provided by sub-section (2), this Part is not intended to exclude or limit the concurrent operation of any law of a State or Territory.

(2) Where an act or omission of a person is both an offence against section 79 and an offence under the law of a State or Territory and that person is convicted of either of those offences, he is not liable to be convicted of the other of those offences.

(3) Except as expressly provided by this Part, nothing in this Part shall be taken to limit, restrict or otherwise affect any right or remedy a person would have had if this Part had not been enacted.

Mr. McLelland for GMAC endeavoured to minimize the provisions of s. 75 (1) by submitting that the Commonwealth Parliament has no power to enact a law which is inconsistent with s. 109 of the Constitution and that where a s. 109 inconsistency arises a law denying the existence of that inconsistency is invalid. So much may be accepted without denying the existence of legislative power in the Commonwealth Parliament to make clear its intention either to cover the field or to refrain from so doing. Where the Commonwealth Parliament's intention to cover the field is in question, the question is to be resolved as a matter of statutory construction. In resolving such a question it is material to consider any provision in the relevant Commonwealth statute which throws light on the intention of the statute to make exhaustive or exclusive provision on the subject with which it deals. A provision in a Commonwealth statute which indicates or tends to indicate whether the statute is intended to make such exhaustive or exclusive provision upon a topic within a head of Commonwealth legislative power is itself a valid law, though it cannot operate of its own force to invalidate or render inoperative a State law.

In Wenn v. Attorney-General (Vict.) Dixon J. said [29] :

To legislate upon a subject exhaustively to the intent that the areas of liberty designedly left should not be closed up is, I think, an exercise of legislative authority different in kind from a bare attempt to exclude State concurrent power from a subject the Federal legislature has not effectively dealt with by regulation, control or otherwise. It is still more widely different from an attempt to limit the exercise of State legislative power so that the Commonwealth should not be consequentially affected in the ends it is pursuing. This is not a case which, in my opinion, falls within the description of legislation so powerfully attacked by Evatt J. in West v. Commissioner of Taxation (N.S.W.) [30] .

There is no doubt great difficulty in satisfactorily defining the limits of the power to legislate upon a subject exhaustively so that s. 109 will of its own force make inoperative State legislation which otherwise would add liabilities, duties, immunities, liberties, powers or rights to those which the Federal law had decided to be sufficient. But within such limits an enactment does not seem to me to be open to the objection that it is not legislation with respect to the Federal subject matter but with respect to the exercise of State legislative powers or that it trenches upon State functions. Beyond those limits no doubt there lies a debatable area where Federal laws may be found that seem to be aimed rather at preventing State legislative action than dealing with a subject matter assigned to the Commonwealth Parliament.

See also Collins v. Charles Marshall Pty. Ltd. [1] and Reg. v. Railways Appeal Board (N.S.W.); Ex parte Davis [2] . 1. (1948) 77 C.L.R. 84, at p. 120. 2. (1937) 56 C.L.R. 657. 3. (1955) 92 C.L.R. 529, at pp. 548-549. 4. (1957) 96 C.L.R. 429, at p. 439.

The judgments to which I have referred make the point that although a provision in a Commonwealth statute which attempts to deny operational validity to a State law cannot of its own force achieve that object, it may nevertheless validly evince an intention on the part of the statute to make exhaustive or exclusive provision on the subject with which it deals, thereby bringing s. 109 into play. Equally a Commonwealth law may provide that it is not intended to make exhaustive or exclusive provision with respect to the subject with which it deals, thereby enabling State laws, not inconsistent with Commonwealth law, to have an operation. Here again the Commonwealth law does not of its own force give State law a valid operation. All that it does is to make it clear that the Commonwealth law is not intended to cover the field, thereby leaving room for the operation of such State laws as do not conflict with Commonwealth law.

It is of course by now well established that a provision in a Commonwealth statute evincing an intention that the statute is not intended to cover the field cannot avoid or eliminate a case of direct inconsistency or collision, of the kind which arises, for example, when Commonwealth and State laws make contradictory provision upon the same topic, making it impossible for both laws to be obeyed. In Reg. v. Loewenthal; Ex parte Blacklock [3] , I pointed out that such a provision in a Commonwealth law cannot displace the operation of s. 109 in rendering the State law inoperative. But where there is no direct inconsistency, where inconsistency can only arise if the Commonwealth law is intended to be an exhaustive and exclusive law, a provision of the kind under consideration will be effective to avoid inconsistency by making it clear that the law is not intended to be exhaustive or exclusive.

It is against this background of settled constitutional interpretation that s. 75 is to be construed. In the light of what has already been said, the terms of s. 75 (1) are open to the objection that they refer to the concurrent operation of State laws; they do not speak of the extent of the intended operation of the Commonwealth law. None the less, there is to be gathered from the sub-section a very clear expression of intention that the Trade Practices Act is not an exhaustive enactment on the topics with which it deals and that it is not intended to operate to the exclusion of State laws on those topics. As such it does not avoid any instance of direct inconsistency which may occur between the Trade Practices Act and the two South Australian Acts, but in accordance with all that I have said, it eliminates any suggestion of inconsistency otherwise arising.

Before examining the question of direct inconsistency, it is convenient to look at a novel argument which was advanced by Mr. McLelland on behalf of GMAC. It was submitted that an inconsistency could arise if it appeared that a State law was intended to cover a relevant field to the exclusion of Commonwealth law. In this event the subsequent enactment of a Commonwealth law upon the topic would produce, so it was said, an inconsistency upon which s. 109 would operate. If in such a case there were no instance of direct collision between Commonwealth and State law and no intention on the part of the Commonwealth law to cover the field, it might be doubted whether an inconsistency in the constitutional sense would arise. In the event that such an inconsistency were held to arise its effect would be to render the State law inoperative, but only to the extent of the inconsistency. As the conflict would be confined to that part of the State law that manifested an intention to operate to the exclusion of Commonwealth law, that part alone would be rendered inoperative by s. 109. To produce a more drastic result it would be necessary to predicate a State law so expressed that its operation becomes contingent or conditional upon the continuing absence of any Commonwealth law upon the topic. If we were to suppose the existence of such a State law, the intrusion of a Commonwealth law upon the topic would result in the State law ceasing to have an application, not by virtue of the operation of s. 109, but in consequence of the very terms of the State law.

In the end it may be said that in this case these considerations are of no importance, for the foundation on which GMAC's argument is based is infirm. It cannot be said of either of the State Acts that its operation is made conditional or contingent upon the continuing absence of Commonwealth law in the field. Conditional or contingent operation and the relationship of the two statutes to future Commonwealth legislation are matters to which no reference at all is made in the two State Acts. They should therefore be given an absolute operation according to their terms, in preference to a highly unusual application for which no solid basis can be discovered in the statutory provisions.

The case of direct inconsistency, independent of s. 52 (1) of the Trade Practices Act, remains to be considered. It may be disposed of quite shortly because it rests on the mere coexistence of two sets of conditions implied under the Consumer Transactions Act and the Trade Practices Act. Granted that the conditions deal with the same subject matter and that they are in different terms, I am unable to discern in these circumstances an instance of direct inconsistency or collision. Two such sets of conditions may coexist in the one contract without producing any contradiction or impossibility of performance. The case is no different from the coexistence in the same contract of an express condition and a condition implied by statute (differing in terms from the express condition) on the same subject matter. The consumer has the benefit of both conditions and may rescind if there is a breach of one condition and not of the other.

In the result I am of the opinion that there is no inconsistency, that the summons in matter No. 100 of 1976 seeking a declaration that GMAC was not required to comply with s. 40 (5) of the Consumer Credit Act should be dismissed, and that the other two matters should be remitted to the Supreme Court where so much of GMAC's case as rests on non-constitutional grounds may be heard and determined, the parties having agreed to a remitter of the balance of these matters as a condition of their removal into this Court.

I have had the advantage of reading the reasons for judgment prepared by Mason J. I agree with them and with the conclusion which he expresses. There is nothing which I can usefully add.

In the Trade Practices Act 1974 the Parliament has not legislated comprehensively or exhaustively for consumer protection, but has adopted selective regulatory measures (see Rice v. Santa Fe Elevator Corporation [4] . Section 75 of the Act expresses the intent that State laws on the subjects dealt with in "Part V - Consumer Protection" are not to be precluded except where they directly collide with the provisions of the Act. As there is no direct collision between the Consumer Transactions Act S.A., the Consumer Credit Act S.A. and the Trade Practices Act, there is no inconsistency.

The 13th Schedule notice purports only to describe the protection conferred by these two South Australian Acts. It is not misleading within the meaning of the Trade Practices Act (s. 52 (1)).

At a glance

Court

Decision date

Before

Source

Judgment (73 paragraphs)

Parties