R v Judges of Federal Court of Australia

1. (1978) 140 C.L.R. 216. 2. (1977) 16 A.L.R. 187.

Section 80 (1) (c) of the Trade Practices Act 1974 Cth, as amended, empowers the Federal Court to grant an injunction restraining contraventions of Pt V of the Act "on the application of any other person". The respondents to each of these applications have instituted proceedings before the Federal Court seeking relief under s. 80 (1) (c), based upon allegations of contraventions of Pt V. Those respondents are not consumers of the products against the suppliers of which they seek that relief: they are, on the contrary, trade competitors of those suppliers.

The substance of each of the present applications made to this Court by those suppliers, as prosecutors, is whether "any other person" in s. 80 (1) (c) has a wide and general meaning which extends to all persons, whether or not consumers; or whether, on the contrary, it is, as the prosecutors contend, confined to persons who are consumers. The prosecutors say that it is so confined and that they are accordingly entitled to prohibition, since the Federal Court is exceeding its jurisdiction in entertaining proceedings instituted by trade competitors who are not consumers.

They support this argument by pointing to the terms of Pt V of the Act which they say is concerned exclusively with the protection of consumers, who alone are capable of being misled or deceived, of being the victims of false or misleading representations or statements, of being unduly harassed or coerced or of otherwise being the target of the sort of conduct at which Part V is aimed.

The argument is that s. 80 of Pt VI of the Act, the Part headed "Enforcement and Remedies", is concerned with enforcing and giving remedies for contraventions of Pt V, itself headed "Consumer Protection": enforcement is the concern of sub-paragraphs (a) and (b) of s. 80 (1), which names respectively "the Minister" and "the Commission" as permitted applicants for injunctive relief. Then, so it is said, sub-paragraph (c), with its reference to "any other person", is concerned with the giving of a remedy to those requiring it, namely consumers; they alone are persons who can point to a breach of an obligation owed to them and created by Pt V of the Act.

Such a view involves reading down the wide term "any other person" and the prosecutors rely for this purpose upon Reg. v. Controller-General of Patents; Ex parte Tomlinson [33] . However that decision turned very much upon the statutory context, a context quite dissimilar from that occurring in the present case. In my view the decision casts no light upon the effect of s. 80 (1) (c).

The prosecutors must, then, rely upon indications to be gleaned from other provisions of the legislation if they are to achieve the reading down which they seek. However, obstacles lie in their way. Part V proves, upon examination, to extend the protection it confers beyond those who are consumers - e.g., ss. 59, 61; Pt IV, to any contraventions of which s. 80 equally applies, contains provisions which concern competitors and in respect of which competitors must be able to seek relief in reliance upon s. 80 (1) (c). Again, when s. 80 (1) (c) was amended in 1977 by inserting before "any other person" the words "subject to sub-section (A)" the result was to create one instance of an express restriction upon the width of sub-paragraph (c). Sub-section (1A) of s. 80 disentitles a person other than the Minister or the Commission from making application for an injunction where the contravention to be restrained is founded upon s. 50 of the Act. The very existence of this one express restriction may be thought to emphasize the otherwise wholly unrestricted scope of s. 80 (1) (c). However, perhaps the chief obstacle in the path of the prosecutors lies in the very width and generality of the words of s. 80 (1) (c); clear words or necessary implication from context would, in my view, be required to overcome the ordinary meaning of words such as these. Neither is, in my view, to be found in the Act.

The Queen v. Federal Court of Australia and McDowell Pacific Ltd.; Ex parte Pilkington A.C.I. (Operations) Pty. Ltd.

This was an application to make absolute an order nisi directed to the Judges of the Federal Court of Australia prohibiting them from proceeding with the hearing of an application by McDowell Pacific Ltd. ("McDowell") for an injunction under s. 80 of the Trade Practices Act 1974, as amended, ("the Act") restraining the prosecutor, Pilkington A.C.I. (Operations) Pty. Ltd., from engaging in certain conduct. The ground upon which prohibition was sought was that McDowell was at all material times a competitor of the prosecutor and that as such it did not have standing to institute proceedings for relief under s. 80 of the Act and that therefore the Federal Court lacked jurisdiction to entertain and deal with the application made to it. At the conclusion of the hearing this Court discharged the order nisi for prohibition with costs and announced that the reasons for its decision would be published later.

According to the evidence the prosecutor is the sole manufacturer in Australia of what is known as wired glass. It is in direct competition with McDowell which imports and sells wired glass in Australia. There is evidence that McDowell is neither a consumer nor a potential consumer of wired glass in Australia. On 1st March 1978 on the application of McDowell the Federal Court (Deane J.) made an order against the prosecutor calling on it to show cause why it should not be restrained from engaging in the following conduct:

Representing, contrary to the Act, (whether in advertisements, brochures or otherwise) in trade or commerce, that the wired glass manufactured by it and sold under the trade descriptions "Obscura" and "Scintilla" has uses which it does not have, namely, that it may legally be used to make a panel or door to screen a shower or bath where such glass is used within 1.8 metres of the floor or is "safety glass" within the meaning of the relevant building legislation and ordinances.

Although this order seems to suggest that McDowell was basing its case on s. 53 (c) of the Act, particulars subsequently furnished by McDowell indicate that it was relying as well on ss. 52 (1) and 53 (a). The three provisions to which I have referred are contained in Div. 1 of Pt V of the Act. Part V is headed " Consumer Protection " and Div. 1 is headed "Unfair Practices".

(1) A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

20. A corporation shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services or in connexion with the promotion by any means of the supply or use of goods or services -

(a) falsely represent that goods are of a particular standard, quality, grade, composition, style or model or have had a particular history or particular previous use;

(c) represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have.

(c) subject to sub-section (1A) - any other person,

grant an injunction restraining a person from engaging in conduct that constitutes or would constitute -

(d) a contravention of a provision of Part IV or V;

(f) aiding, abetting, counselling or procuring a person to contravene such a provision;

(g) inducing, or attempting to induce, a person, whether by threats, promises or otherwise, to contravene such a provision;

(h) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or

(j) conspiring with others to contravene such a provision.

(1a) A person other than the Minister or the Commission is not entitled to make an application under sub-section (1) for an injunction by reason that a person has contravened or attempted to contravene or is proposing to contravene, or has been or is proposing to be involved in a contravention of, section 50.

The prosecutor's case was that Pt V of the Act is directed to the protection of members of the public in their capacity as consumers of goods or services and that it is not concerned with the protection of competitors in trade or commerce. The prosecutor then submitted that s. 80 (1) (c), properly construed, was not designed to afford relief in respect of contraventions of Pt V except to persons which it was the purpose of Pt V to protect, with the consequence that a competitor who is not a consumer or potential consumer has no sufficient interest to obtain an injunction against a person who is contravening the provisions of the Part.

There is at the outset the preliminary question whether the issue which the prosecutor seeks to raise is one which goes to the jurisdiction of the Federal Court and is appropriate to be raised by way of prohibition. The jurisdiction of this Court to grant prohibition to an officer of the Commonwealth is conferred by s. 75 (v.) of the Constitution and it cannot be removed by statute. This jurisdiction is recognized by s. 86 of the Act which, along with s. 80, appears in Pt VI - " Enforcement and Remedies ".

The section is curiously expressed. It is in these terms:

86. Jurisdiction is conferred on the Court to hear and determine actions, prosecutions and other proceedings under this Part and that jurisdiction is exclusive of the jurisdiction of any other court, other than the jurisdiction of the High Court under section 75 of the Constitution.

In so far as the section speaks of exclusive jurisdiction it evidently speaks of original jurisdiction. It would be astonishing if the decision of a single judge of the Federal Court were made final and conclusive, not subject to any appeal, and it would be even more astonishing to find such a result achieved indirectly by giving the Federal Court exclusive jurisdiction in all cases except s. 75 (v.) matters. As I read s. 86, it is aimed solely at the exercise of original jurisdiction by the Federal Court and does not derogate from the general provisions regulating appeals from decisions of the Federal Court to the Full Court of that Court and subsequently to the High Court that are contained in ss. 24 and 33 of the Federal Court of Australia Act 1976.

So understood, s. 86 confers jurisdiction on the Federal Court to hear and determine an application for an injunction under s. 80 to restrain a contravention of the provisions of Pt V. The Federal Court is a superior court of record (s. 5 (2) of the Federal Court of Australia Act), not an inferior tribunal, although it is a court of limited federal jurisdiction, not a court of general jurisdiction. It has the power, indeed the duty, to decide every issue of fact and law which arises for determination in those matters in which jurisdiction is conferred upon it by s. 86.

Whether an applicant falls within the statutory description or category of persons who are eligible to apply for an injunction under s. 80 is an issue which necessarily arises in proceedings for relief under that section. As such it is an issue which the Federal Court is required to consider and decide in the course of exercising its jurisdiction. In so doing the Court is required to determine the true construction of s. 80. But this affords no reason for thinking that it is not a matter within the province of the Federal Court. It would be bizarre indeed if the Federal Court were without jurisdiction to determine the construction of s. 80 when it is an issue which necessarily arises in proceedings under that section, the Court having exclusive jurisdiction to hear and determine those proceedings. And no less surprising that the Court in which original jurisdiction in proceedings under the Act is invested should be deprived of jurisdiction to decide a question of construction of a section of the Act which authorizes the Court to grant relief of a particular kind.

Whether a party to proceedings has locus standi is an issue which naturally falls for determination in the ordinary exercise of the jurisdiction committed to a court or tribunal. In R. v. Commissioner of Patents; Ex parte Weiss [1] this Court held that the question of the locus standi of a person claiming to oppose the grant of a patent was for the Commissioner of Patents to determine in the performance of his duty to "hear and decide the case" under s. 57 of the Patents Act 1903-1935. It was pointed out that his determination might be called in question on an appeal from the Commissioner's decision but that as it was within his jurisdiction to determine the matter, proceedings by way of prohibition were not an appropriate method of questioning the determination. Starke J. said [2] :

the case cannot be decided unless the commissioner determines whether the notice of opposition is good or bad, whether, in other words, it is given by a party entitled to give it, whether that party has sufficient interest to support the opposition, and whether it is given in due time. It is part of his jurisdiction to determine these questions, and it is not in excess of his jurisdiction if he determines them wrongly. If he decides wrongly, that is a matter for appeal if any appeal be provided, and if no appeal is provided then the decision is final and the courts cannot interfere by means of the prerogative writ of prohibition. This was a case involving an inferior tribunal. The reasons for reaching a similar conclusion in relation to a superior court are so much the stronger. 1. (1939) 61 C.L.R. 240. 2. (1939) 61 C.L.R., at p. 257.

It is well settled that prohibition will not issue unless it appears that there is an absence, or an excess, of jurisdiction in a subordinate court or tribunal. Prohibition will not go to restrain a court or tribunal from deciding that which it has jurisdiction to hear or determine. Although a court of limited statutory jurisdiction, from whose decision there is no appeal, cannot give itself jurisdiction by an erroneous decision upon a preliminary question on the answer to which its jurisdiction depends, an erroneous decision upon a point which, however essential to the validity of its order, it is competent to try, is not a ground for prohibition (Amalgamated Society of Carpenters and Joiners Australian District v. Haberfield Pty. Ltd. [3] ). In that case Isaacs J. said [4] : " everything depends upon ascertaining in any particular case whether the matter in contention is collateral or preliminary, or is part of the subject matter, which, if true, is within the Court's jurisdiction".

1. (1907) 5 C.L.R. 33. 2. (1907) 5 C.L.R., at p. 53.

The legislature may make some fact or event a condition upon which the existence of which the jurisdiction of a tribunal or court shall depend. It is far more likely that the jurisdiction of a tribunal will be conditioned in this way than that of a court, more particularly a superior court. The adverse consequences of so conditioning the jurisdiction of a court, even an inferior court, expressed by Dixon J. in Parisienne Basket Shoes Pty. Ltd. v. Whyte [5] provide a powerful reason for rejecting the view that the legislature intended to bring about such consequences in the absence of the plainest words. There Dixon J. said [6] :

if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed. In the past a tendency may have appeared in the superior courts of common law to adopt constructions of statutes conferring powers on magistrates and others which would result in the withdrawal from their exclusive or conclusive determination matters which we should now think were intended for their decision. But, even then, it must not be forgotten that this tendency was manifested in proceedings by certiorari and not in prohibition. When prohibition is based upon want of jurisdiction it means that the proceedings are coram non judice, that a judgment or order, when given or made, would be void. 1. (1938) 59 C.L.R. 369. 2. (1938) 59 C.L.R., at pp. 391-392.

The language of ss. 86 and 80 lends no support to the interpretation which the prosecutor seeks to sustain. Nor has any persuasive reason been advanced for placing such an inconvenient and artificial construction on the provisions of the two sections leading to the adverse consequences mentioned in the previous paragraph, when a sensible reading of the statutory provisions leads to the natural result that the Federal Court has jurisdiction to interpret s. 80 and to decide questions that relate to, or are akin to, questions of locus standi.

In my view, therefore, the case is one in which the Federal Court is engaged in exercising the jurisdiction which is assigned to it. It is conceivable that in exercising this jurisdiction it may arrive at an erroneous decision which will be subject to an appeal under s. 23 of the Federal Court of Australia Act, but this circumstance, should it eventuate, constitutes no ground for saying that the Federal Court is exceeding its jurisdiction. The remarks of Dixon C.J., Webb, Fullagar and Kitto JJ. in Reg. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Amalgamated Engineering Union, Australian Section [7] , made with reference to an application under s. 29 of the Conciliation and Arbitration Act 1904-1952 to the Court of Conciliation and Arbitration for an order enjoining a contravention of s. 96M, have equal application to this case. Their Honours said:

There was a proceeding regularly before it, an application for relief which it was authorized by the Act to entertain. In the course of entertaining that application, it had of necessity to consider the question of the construction and effect of s. 96M (6). The determination of that question was a matter within its jurisdiction, and, where the remedy sought is prohibition, it is not to the point to say that it determined that question wrongly. 1. (1953) 89 C.L.R. 636, at p. 648.

No doubt the desire to secure a final decision in this Court as the ultimate court of appeal on an important question of law and the fact that an appeal to this Court from the Full Court of the Federal Court may necessitate the grant of special leave explain why it is that the prosecutor seeks prohibition from this Court at an early stage in the proceedings before the Federal Court. But understandable though the prosecutor's motives may be, they provide no ground for departing from the firmly established rule that prohibition will not issue unless it appears that there is an absence, or an excess, of jurisdiction.

Indeed, there are the strongest reasons why this Court should insist upon a strict application of the rule in cases arising under the Act in the Federal Court. The Federal Court has been established by Parliament as the court which has exclusive original jurisdiction in matters arising under the Act and the Full Court of that Court has been established as the immediate court of appeal in relation to matters arising under the Act. This Court is the ultimate court of appeal, but Parliament has conditioned the appellate jurisdiction of this Court on the grant of special leave except in those cases where there is an appeal as of right. As the ultimate court of appeal this Court is entitled to the benefit of considering the Federal Court's views on the construction and application of the provisions of the Act. Moreover, this Court is entitled to the benefit of the Federal Court's findings of fact. Many cases arising under the Act are noted for their complexity both in relation to the facts and the law, and it is desirable that the Federal Court should be permitted to exercise its jurisdiction without interference by this Court by way of grant of prohibition except in those instances where the matter in question plainly gives rise to an absence or excess of jurisdiction.

There are, it must be acknowledged, some instances in which prohibition has been awarded at an early stage of proceedings in an inferior tribunal so as to prevent it from granting relief before it has decided the preliminary or collateral issue on which the power to grant relief depends. For the most part these are cases in which there was some reason for thinking that the tribunal would decide the issue erroneously or otherwise exceed the authority conferred upon it (Reg. v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd. [8] ). Again, there are the somewhat anomalous instances of the grant of prohibition so as to prevent an inferior tribunal from entertaining a proceeding of a kind which it manifestly lacks jurisdiction to entertain in circumstances where there was nothing to indicate that the tribunal would have proceeded to the grant of relief. It is enough to say that the present case does not fall within either of these categories.

In the light of my conclusion that this is not a case for prohibition I have no need to deal with the prosecutor's arguments on the issue of substance which it sought to raise. However, as the point has been fully argued and as the Federal Court's view of the question is well known, it is as well that I should express my opinion upon it.

I do not think that s. 80 should be restricted in the manner suggested by the prosecutor. The Court is authorized by s. 80 (1) (c) to grant relief on the application of "any other person". The class is expressed as widely as it can be and it would require considerations of very great strength to warrant a reading down. Moreover, the existence of the express qualification or limitation in sub-s. (1A) serves to indicate that that is the only qualification or limitation to be placed upon s. 80 (1) (c).

There is, in my view, no incongruity in making the provisions of Pt V of the Act, notwithstanding they have been enacted for the protection of consumers, enforceable at the instance of a competitor who is not a consumer. The enforcement, at least by injunction, by such a person of the Pt V provisions enhances the protection which they give to consumers. Indeed, it constitutes the most effective sanction for that protection because the consumer who is misled or deceived in consequence of an unfair practice is unlikely to be a suitor for an injunction against the contravening corporation; he is more likely to seek damages.

I agree with the observations made by Bowen C.J. in World Series Cricket Pty. Ltd. v. Parish [9] :

Even where the application is brought by a rival competitor seeking redress of damage to his business caused by the allegedly unfair and illegal practices of the respondent, the application, though it vindicates or protects the private interests of the competitor, at the same time secures the public interest of consumer protection. Though, for example, the complaint under Pt V of the Act in some cases closely resembles an action for passing off or trade libel, it is nevertheless an action to protect the consuming public from being misled or misinformed. For competition between rival traders properly to be promoted, it is necessary that the relevant market is kept adequately informed about the goods or services available for purchase, and is not misled by deceptive trade practices. See also the observations of Franki J. [10] and Brennan J. [11] . 1. (1977) 16 A.L.R. 181, at pp. 186-187. 2. (1977) 16 A.L.R., at p. 196. 3. (1977) 16 A.L.R., at p. 199.

It follows that in my opinion the effect of s. 80 (1) (c) was correctly expressed by Stephen J. (with whom Jacobs and Murphy JJ. agreed) in Hornsby Building Information Centre Pty. Ltd. v. Sydney Building Information Centre Ltd. [12] when his Honour said: " the Sydney Centre is not to be excluded from recourse to relief under s. 80 against contravention of s. 52 (1) because there are no private users of its services or because it has initiated these proceedings essentially for its own purposes in protection of its own interests and not those of consumers." I prefer this view of s. 80 to that enunciated by Barwick C.J. in the same case.

It is for these reasons that I participated in discharging the order nisi.

The Queen v. Federal Court of Australia and Richardson-Merrell Pty. Ltd.; Ex parte Soul Pattinson (Laboratories) Pty. Ltd.

This case raises issues similar to those which arose in Reg. v. Federal Court of Australia and McDowell Pacific Ltd.; Ex parte Pilkington A.C.I. (Operations) Pty. Ltd. The prosecutors, who are the respondents in proceedings in the Federal Court of Australia, seek an order absolute for prohibition against the Judges of the Federal Court and the applicant in that Court, Richardson-Merrell Pty. Ltd. ("Richardson-Merrell"). In its statement of claim in the Federal Court, Richardson-Merrell alleged that it manufactured and is manufacturing for sale and that it sold and is selling in Australia a skin care product known as "Oil of Ulan", that the product has become widely known and has acquired a valuable reputation. The statement of claim went on to allege that the first prosecutor has manufactured and the other prosecutors have sold a skin care product got up in cartons so as to be misleadingly and deceptively similar to the cartons in which Richardson-Merrell's product is sold. By reason thereof Richardson-Merrell claimed a declaration in the Federal Court that the prosecutors had engaged in conduct which is a contravention of ss. 52 and 53 of the Trade Practices Act 1974, as amended ("the Act"), injunctions restraining the prosecutors from manufacturing or selling a skin care product which is so got up to be in appearance substantially identical with, or deceptively similar to, the get-up of Richardson-Merrell's product and restraining the prosecutors from manufacturing or selling a skin care product in a carton substantially identical with or deceptively similar to the appearance or the get-up of Richardson-Merrell's skin care product or otherwise in such manner as to engage in conduct constituting a contravention of the provisions of s. 52 and s. 53 (a) and (d) of the Act. Richardson-Merrell also sought an order for delivery up of offending material, an inquiry as to loss and damage and an order in the form of an injunction to restrain passing off.

The prosecutors' first point is that Richardson-Merrell is not entitled to an injunction under s. 80 of the Act because it is a competitor and not a consumer or potential consumer and that prohibition will issue on this ground. For the reasons which I have given in Reg. v. Federal Court of Australia and McDowell Pacific Ltd.; Ex parte Pilkington A.C.I. (Operations) Pty. Ltd. this submission must be rejected. The prosecutors' second submission is that the proceedings are framed solely to protect Richardson-Merrell in its trade or business and are in the nature of passing off proceedings, that this gives Richardson-Merrell no foundation for an injunction to restrain a contravention of Pt V, in particular s. 52, with the consequence that the Federal Court lacks jurisdiction to entertain the proceedings. Again, what I have said in Ex parte Pilkington A.C.I. (Operations) Pty. Ltd. as to the availability of prohibition and as to the relationship which subsists between Pt V and s. 80 sufficiently answers this argument.

The prosecutors' third submission, as I understand it, is that the claim for damages is not authorized by s. 82 of the Act because that section confers a right to damages on a "person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV or V". The point is that only a person who falls within the category of persons for whose benefit Pt V has been enacted can suffer loss or damage by an act done in contravention of that Part. Without dealing with the substance of the submission it is enough for me to say that it is not a matter that goes to the jurisdiction of the Federal Court, it being an issue for the Federal Court to determine in the jurisdiction that is conferred upon it.

Quite apart from what I have already said, once it is decided, as it has been decided, that the Federal Court has jurisdiction to entertain the claim for an injunction under s. 80, that spells the end of the prosecutors' case for prohibition. There is no reason why this Court should in the circumstances that obtain here take the unusual step of exercising its discretion to grant prohibition in relation to part only of the claims made in the statement of claim, when the Federal Court has jurisdiction to entertain and deal with the residue of the case, involving as it does a claim for declarations and injunctions.

It is for these reasons that I participated in the making of the order discharging the order nisi for prohibition.

I agree with the reasons which have been expressed by Mason J.

The Queen v. Federal Court of Australia and McDowell Pacific Ltd.; Ex parte Pilkington A.C.I. (Operations) Pty. Ltd.

On 4th May 1978, this Court discharged an order nisi for prohibition against the Judges of the Federal Court of Australia proceeding with the hearing of an application by McDowell Pacific Ltd. for an injunction under s. 80 of the Trade Practices Act 1974, as amended, restraining the prosecutor from a breach of s. 52 or s. 53 which are in Pt V of the Act.

The prosecutor contended that the words, "any other person", in s. 80 of the Act did not include McDowell which was a trade competitor in the importation and selling of wired glass in Australia, and that they should not be read in their ordinary meaning but confined to "a person aggrieved" or some other meaning restricted to a consumer which does not include a trade competitor.

There is no reason for reading the words, "any other person", down and strong reason for giving the words their natural breadth. A qualification such as suggested would lead to frequent investigations and arguments, resulting in waste of public time and resources (as has occurred elsewhere) in determining who was and who was not aggrieved. There is no hint of such qualification of the plain words. Also, experience shows that enforcement agencies in environmental and consumer protection (as well as those in occupational safety and health) often become unable or unwilling to enforce the law (because of indadequate resources or because they tend to become too close to those against whom they should be enforcing the law). Section 80 expresses the policy that such tendency to non-enforcement or limited enforcement should be overcome by providing that the Court may grant an injunction restraining a contravention of Pts IV or V on the application of the Minister, the Trade Practices Commission or (except in relation to s. 50) any other person.

In Hornsby Building Information Centre Pty. Ltd. v. Sydney Building Information Centre Ltd. [13] , a majority of this Court expressed the opinion that a person who is a trade competitor may claim an injunction under s. 80 (1). The fact that the proceedings resemble or are in substance a passing off suit does not exclude them from the scope of the Act. The Act is not to be read as if a "reserved powers" doctrine applied to it. Its remedies are available even if they overlap with those otherwise available under State statutory or decisional law; they are not to be read as applicable only in the interstices of remedies under State law (see World Series Cricket Pty. Ltd. v. Parish [14] ).

1. (1978) 140 C.L.R. 216. 2. (1977) 16 A.L.R. 181.

The Federal Court has jurisdiction to deal with the case. The order nisi should be discharged.

The Queen v. Federal Court of Australia and Richardson-Merrell Pty. Ltd.; Ex parte Soul Pattinson (Laboratories) Pty. Ltd.

The prosecutors unsuccessfully sought to have made absolute an order nisi for prohibition against the judges of the Federal Court of Australia and Richardson-Merrell Pty. Ltd. which is an applicant in that Court for an injunction under s. 80 of the Trade Practices Act 1974, as amended, to restrain a contravention of ss. 52 and 54 of the Act and consequential orders, including a claim for damages.

The prosecutors relied on three grounds. The first two grounds have been dealt with in Reg. v. Federal Court of Australia and McDowell Pacific Ltd.; Ex parte Pilkington A.C.I. (Operations) Pty. Ltd. These grounds are that Richardson-Merrell is a competitor and not a consumer or potential consumer and that the proceedings are in the nature of passing-off proceedings. Assuming these to be the facts, they do not deprive the Federal Court of jurisdiction.

The third ground is that part of the application, that is, the claim for damages, is not authorized by s. 82 of the Act, in that the applicant is not a person who falls within the category of persons for whose benefit Pt V of the Act (which includes s. 52) was enacted. In my opinion, the ground is not well founded. If it were it is questionable whether the ground raises a jurisdictional point. Even if it did, prohibition should not, as a matter of discretion, issue in respect of that part only of the application.

At the conclusion of the hearing of the applications to make these orders nisi for prohibition absolute the Court discharged the orders nisi and indicated that its reasons would be given subsequently. It is convenient to deal with them together in these reasons for judgment.

The order nisi obtained on the application of Pilkington A.C.I. (Operations) Pty. Ltd. ("Pilkington") arose out of a proceeding instituted in the general division of the Federal Court of Australia by McDowell Pacific Ltd. ("McDowell") against Pilkington by McDowell obtaining an "order to show cause" issued by a judge of the Federal Court ordering Pilkington to show cause why it should not be restrained from engaging in the following conduct - "Representing, contrary to the Act, (whether in advertisements, brochures or otherwise) in trade or commerce, that the wired glass manufactured by it and sold under the trade descriptions "Obscura" and "Scintilla" has uses which it does not have, namely, that it may legally be used to make a panel or door to screen a shower or bath where such glass is used within 1.8 metres of the floor or is "safety glass" within the meaning of the relevant building legislation and ordinances." On 7th March 1978 Franki J. made an order giving directions with respect to the provision of particulars and the date of hearing which was fixed for 18th April 1978 in Sydney. It appears not to be contested that Pilkington is a manufacturer of glass described as "safety glass" which it sells in Australia and that McDowell is an importer and marketer of safety glass but not a user or consumer thereof, otherwise than for resale. The ground of the order nisi was that McDowell was a competitor of Pilkington and not a person having standing to institute proceedings for relief under s. 80 of the Trade Practices Act 1974 Cth, as amended, and that the Federal Court therefore had no jurisdiction to hear the application.

In the application by Soul Pattinson (Laboratories) Pty. Ltd. and others ("Soul Pattinson"), Soul Pattinson was the respondent in a proceeding commenced in the general division of the Federal Court of Australia by delivery of a statement of claim which alleged that the applicant Richardson-Merrell Pty. Ltd. ("Richardson-Merrell") had since 1970 manufactured for sale in Australia and sold in Australia a "skin care product under the name Oil of Ulan" got up in a particular manner. It was alleged that the product had become widely known to consumers and that Richardson-Merrell had acquired a substantial reputation in the product and that the get-up was distinctive of its product. It further alleged that Soul Pattinson (Laboratories) Pty. Limited had commenced to produce and other respondents to market, in Australia, a skin care product in cartons "got up so as to be misleadingly and deceptively similar" to Richardson-Merrell's product and that such conduct was "misleading or deceptive or likely to mislead or deceive". The relief sought in the proceedings was a declaration that Soul Pattinson had engaged in conduct constituting a contravention of ss. 52 and 53 of the Trade Practices Act, an injunction restraining Soul Pattinson from manufacturing, distributing etc. a skin care product, not manufactured under licence of Richardson-Merrell, which is so got up as to be substantially identical with or deceptively similar to the appearance of the get-up of Richardson-Merrell's skin care product, and from manufacturing, distributing etc. a product substantially identical with or deceptively similar to the appearance or the get-up of Richardson-Merrell's product in such a manner as to engage in conduct constituting a contravention of ss. 52 and 53, an order for delivery up by Soul Pattinson of all cartons, and advertising material etc. which is in the possession, power or control of Soul Pattinson and which is got up to be in appearance substantially identical with or deceptively similar to the appearance of the get-up of the skin care product manufactured and sold by Richardson-Merrell, an inquiry into loss and damage suffered by Richardson-Merrell by the conduct of Soul Pattinson in contravention of s. 52 or s. 53 and an order that Soul Pattinson pay Richardson-Merrell the amount of such loss and damage and finally an injunction restraining Soul Pattinson from manufacturing, distributing etc. or selling whether by use of the said cartons or otherwise any skin care product which is got up in such a way as to be calculated to lead to such product being believed to be or passed off or sold as being the skin care product of Richardson-Merrell. By notice of motion dated 7th April 1978 Richardson-Merrell sought an interlocutory injunction. The order nisi dated 17th April 1978 gave us grounds for the issue of a writ of prohibition that "the last named respondent [Richardson-Merrell] is a competitor of the first named prosecutor [Soul Pattinson] and not a person having standing to constitute proceedings for relief under s. 80 of the Trade Practices Act 1974 and that as a consequence the respondent Judges of the Federal Court of Australia and each and every one of them do not have jurisdiction to hear the said application". On a later date a further ground was added, namely, that the Trade Practices Act did not confer upon the Federal Court jurisdiction to hear a claim for damages in respect of an injury to reputation or otherwise to hear a claim for the order sought and a further ground that in so far as the proceedings claimed an injunction Richardson-Merrell had no standing to sue for such relief under the Trade Practices Act and that the proceedings were proceedings for passing off and that accordingly the Federal Court had no jurisdiction to hear the application.

Although the proceedings perhaps may be more properly described as having been heard consecutively, rather than together, the arguments overlapped to a substantial extent and the argument for Pilkington was adopted by counsel for Soul Pattinson although he did address an additional and separate argument. A number of different matters were canvassed in the course of the argument. I do not find it necessary to consider the merits of the arguments in respect of the proper construction of ss. 52 and 53 and ss. 80 and 83 because I have formed the view that the points relied upon do not go to the jurisdiction of the Federal Court, but concern matters which fall within its jurisdiction to decide and are such that if any error is made in the exercise of that jurisdiction it can be corrected on appeal to the Full Court of the Federal Court or by appeal, as of right or by leave as the case may be, to this Court.

The ground for prohibition is in effect the same in each case and it may be summarized by saying that the remedy given by s. 80, at least in so far as it relates to alleged breaches of ss. 52 and 53 is, upon the proper construction of s. 80, available only to the Minister, the Commission and to consumers. It is said in effect that para. (c) of s. 80 when it refers to "subject to sub-section 1 (A) - any other person" may apply, the words "any other person" refer to consumers only and in particular do not include competitors. It is likewise said that the provision in s. 82 (1) concerning damages refers to damage suffered by consumers or a consumer and in particular does not include loss or damage suffered by competitors by reason of passing off or otherwise. It was further said that the construction of those sections being so limited the Court had no jurisdiction to entertain proceedings under s. 80 or s. 83 in which an injunction or damages was claimed by a trade competitor in respect of competitive acts said to be misleading or deceptive or calculated to enable the defendant's goods to be passed off as those of the plaintiff. It was further said that on the face of each of these proceedings in the Federal Court they fell within those categories and that there was accordingly no jurisdiction in the Federal Court to entertain the proceedings.

The distinction between error made in the course of the exercise of jurisdiction and the erroneous assumption of jurisdiction where some matter of fact or of mixed fact and law is an essential prerequisite of jurisdiction has been well known since the 17th century, though it is not always easy to apply. The point has been dealt with and explained in this Court on a number of occasions. It will be sufficient to cite two only of those decisions. I refer first to the well-known passage from the judgment of Dixon J. in Parisienne Basket Shoes Pty. Ltd. v. Whyte [15] :

It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed. In the past a tendency may have appeared in the superior courts of common law to adopt constructions of statutes conferring powers on magistrates and others which would result in the withdrawal from their exclusive or conclusive determination matters which we should now think were intended for their decision. But, even then, it must not be forgotten that this tendency was manifested in proceedings by certiorari and not in prohibition. When prohibition is based upon want of jurisdiction it means that the proceedings are coram non judice, that a judgment or order, when given or made, would be void. But certiorari is a proceeding for quashing orders that are voidable only. When nothing was intended in favour of orders of courts of inferior jurisdiction and magistrates and when convictions before them were bad unless they set out on their face the information, the process and the materials upon which they were founded, it was almost inevitable that whatever grounds existed for setting aside an order or conviction would be available upon certiorari. For a conviction was liable to quashing if upon its face a failure in the observance of law appeared. But it is one thing to quash a conviction or order for error on its face and another to hold that the court or magistrate usurped jurisdiction in making it. This explains the case referred to in the argument (R. v. Hammersmith Profiteering Committee [16] ), where upon certiorari a conviction was quashed in respect of an offence which according to the conviction itself was committed more than the statutory period before the prosecution.

We are concerned in the present case with prohibition, and I am clearly of opinion that the prerogative writ of prohibition does not lie to prohibit a Court of Petty Sessions from proceeding upon an information upon the ground that it was laid after the expiry of a time limited in the manner adopted by s. 229 (a) of the Factories and Shops Act 1928. The effect of such a limitation when considered with the provisions creating the offences to which it applies is to impose upon a person offending a penal liability during the prescribed period. Throughout the time limited he is under a liability to punishment, afterwards that liability is gone. Upon a prosecution the question for the decision of the court or tribunal is whether within that period he has committed the offence charged. Their jurisdiction necessarily includes the determination of that entire question.

The second reference is to the passage in the judgment of Dixon J. in R. v. Taylor; Ex parte Professional Officers' Association - Commonwealth Public Service [17] : The Registrar had presented to him, as I have said, an application for the alteration of the conditions of eligibility. It was for the striking out of the provision which prevented members of the Public Service who are not engaged in an industry conducted by the Commonwealth from being members of the association. To strike it out merely removed a negative prohibition and left the general positive words of the condition of eligibility to speak for themselves and to operate as they might under the law. The Industrial Registrar, having considered this application, referred it under s. 30 to the court for decision. The court informed him by its reasons that he might proceed as asked but no formal order has been drawn up. It is not clear to me how the formal order of the court would have been drawn up and whether it would amount to a judicial decision. It has in this argument been treated as advisory only. In my opinion the Industrial Registrar in proceeding under regs. 118 and 119 was exercising the power reposed in him. He was considering an application for his approval and the registration of an alteration of the rules. This power enabled him to approve and required him before doing so to satisfy himself of the matters specified in s. 79 (3). He is engaged upon the very function assigned to him and none the less so because he may arrive at an erroneous conclusion. An officer may decide a matter before him wrongly without exceeding his power.

I think that the policy of the Act is that matters of this description should be dealt with by the Court of Conciliation and Arbitration and by its officers and that we should be very careful in maintaining the distinction between error in deciding a matter and excess of power so that we do not award a writ of prohibition in matters which are within the province of the court and of the Registrar to decide. We should be careful to exclude from our consideration matters which go to the correctness or incorrectness of the decisions of the Registrar or of the court when we are called upon to decide whether they have exceeded power. In the present case I do not think an erroneous determination of the Registrar would amount to an excess of power if he makes an erroneous determination, and on that ground I think that there is no room for a writ of prohibition.

1. (1938) 59 C.L.R. 369, at pp. 391-392. 2. (1920) 89 L. & K.B. 604: 122 L.T. 720. 3. (1951) 82 C.L.R. 177, at pp. 185-186.

By s. 4 (1) of the Trade Practices Act (as amended by the Federal Court of Australia (Consequential Provisions) Act 1976) the term "Court" is defined as the "Federal Court of Australia" and under Pt VI " Enforcement and Remedies " that Court is given power to deal with a number of contraventions of provisions of the Act and to make various orders. Part V which is headed " Consumer Protection " prohibits the doing in trade and commerce of a number of things and actions - see ss. 52 to 64. In Pt VI under s. 76 it is provided that if that Court is satisfied that a person has contravened a provision of Pt IV of the Court may order the person to pay to Australia a pecuniary penalty. By s. 80 it is provided that:

(c) subject to sub-section 1 (A) - any other person,

grant an injunction restraining a person from engaging in conduct that constitutes or would constitute -

(d) a contravention of a provision of Part IV or V;

By s. 82 (1) it is provided that "A person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV or Part V may recover the amount of the loss or damage by action against that other person." Sections 83, 86 and 87 make it clear the proceedings to recover such damages are to be instituted in the Federal Court. Reference should also be made to s. 163 which provides that prosecutions for offences under the Act are to be brought only in the Court, i.e. the Federal Court and jurisdiction is given to that Court to hear and determine prosecutions under the Act.

It appears from those sections that the Federal Court of Australia is the only court of first instance which is concerned with the enforcement of the Act and the punishment of offences against it. Both civil and criminal proceedings as well as quasicriminal proceedings for penalties must be instituted in that Court and that Court alone. Prima facie therefore it would seem that the proper construction of the Act is committed to the Federal Court and if errors of construction are made then they may be corrected on appeal to the Full Court of the Federal Court as constituted by the Federal Court of Australia Act 1976, ss. 24 and 25. From the Full Court of the Federal Court an appeal will lie to this Court either as of right or by leave in accordance with the provisions of s. 33 of that Act.

The questions which are raised by these orders nisi are all matters of construction. Thus, they include the proper construction of the expression "any other person" in s. 80 (1) (c) and the expression "a person who suffers loss or damage by an act of another person that was done in contravention of a provision of Part IV" in s. 82. The determination of such matters of construction is a task committed in the first instance to the Federal Court, just as the questions of fact involved in a contravention of a provision as construed by the Federal Court are themselves for the Federal Court to determine. Such factual conditions are not "jurisdictional facts" upon the actual existence of which, as determined by some superior court, the jurisdiction depends. It is the function of the Federal Court itself to determine whether or not those facts exist, subject of course to such rights of appeal as may be available. So also with regard to such questions of law as may be involved in the determination of whether there has been a contravention of Pt IV. The matters sought to be raised in these applications for prohibition are for those reasons matters which do not go to the constitutional or statutory limits of the jurisdiction of the Federal Court, but to the exercise of its jurisdiction. It is for that Court at first instance or on appeal, as the case may be, to decide those matters for itself, subject to such rights of appeal to this Court as are provided.