3. The respondent moves under Order 11 Rule 16 of the Rules of Court for an order that the statement of claim be struck out. The respondent submits that the statement of claim has a tendency to cause embarrassment in the proceedings, a deficiency that might be cured by amendment, but the principal attack upon the statement of claim is that it discloses no reasonable cause of action.

4. The statement of claim alleges that at all material times copyright in two films, one called "First Fleet Rite of Passage" and the other "Celebration of Australia Day 1988" was vested in the applicant. Both films are said to relate to Australia's bicentennial celebrations. The applicant alleges that it has had available both films "in video format" for sale to the public, and that it also has had available for sale to the public two books, each of which related to the bicentennial celebrations. In order to promote the sale of the video films and books, the applicant prepared a brochure advertising them. The brochure included a pre-paid post order form which the applicant wished to have delivered to "every household in Australia".

5. The applicant further alleges in the statement of claim that in order to promote the sale of the video films and books, and to effect delivery "to every household in Australia", the applicant entered into an agreement with the Commission whereby the Commission undertook the delivery of the brochures to "every household in Australia" in consideration of the applicant paying to it a special Householder mailing rate and the Commission's Business Parcels and Packets rates. The agreement is alleged to be partly oral and partly in writing.

6. In the particulars which accompany the statement of claim, it is said that the oral element of the agreement arose in conversations between representatives of the parties between early March and the middle of April 1988. The written element of the contract is said to be contained in two documents to which the applicant craves leave refer as if they were fully set out in the statement of claim.

7. The first of these documents is headed "Australia Post Householder Delivery Service Agreement". The period of the agreement is stated to be from 11 April 1988 to 10 April 1989, and the minimum number of articles to be lodged is 5,865,100. The agreement states that the articles will be lodged at "various mail centres" and that all appropriate charges will be debited to bulk postage charge account No. N116393-8. The applicant agrees to advise the Sales Department of Australia Post (NSW) of details of lodgments at least two weeks in advance of the proposed delivery commencement date. The agreement appears to have been executed by the applicant on 18 April 1988, and by the Commission on 22 April 1988.

8. Clause 8 of the agreement states that it is subject to the attached "general conditions applicable to the householder delivery service". General condition 3 is headed "Delivery Standard" and is in the following terms:

3.1 The delivery standard which Australia Post

intends to apply to the articles requires

delivery in each delivery area to be made

within three working days of receipt of the

articles at the Post Office of delivery, not

including the first working day of a week.

3.2 The Mailer (meaning the applicant) agrees

that nothing in this Agreement shall be

taken as affecting the immunity from action

to which Australia Post and its servants and

agents are entitled under Section 104 of the

Postal Services Act 1975 in respect of

defects in the manner and time of delivery

of the articles or as relieving the Mailer,

in the event of such defects occurring, from

any part of its obligation to pay the

postage agreed. In the event of any

disruption resulting from an industrial

stoppage in Australia Post services,

delivery will be undertaken as soon as

possible after resumption of work unless

alternative delivery arrangements are made

prior to posting.

3.3 In the event of a departure from the

lodgement schedule as approved by Australia

Post, consideration will be given to

delivery the articles as soon as possible

upon receipt.

9. Paragraphs 6 and 7 of the statement of claim are as follows:

6. During the course of the negotiations in

respect of the said contract the Respondent

represented to the Applicant:

(i) That the brochures would be delivered

to every household in Australia.

(ii) That the Respondent could ensure that

the brochures would be delivered to

country areas.

(iii) That there was a much better accept-

ance rate if brochures went through

the mail rather than just being put

into the letterbox on weekends.

(iv) That the likely rate of acceptance

for this brochure could be 5%.

(v) Provided the Applicant got the

brochures to the individual post

offices by lodging the same at its

distribution centre, the Respondent

would deliver the brochures to every

household in Australia.

(vi) That if Australia Post failed to

deliver there would be a right of

recourse against it.

7. Further in the Australia Post Householder

Delivery Service Agreement the Respondent

represented that the delivery standard

intended in respect of the brochures was

that they would be delivered in each postal

area within three working days of receipt of

the brochures to the post office of

delivery, not including the first working

day of a week.

10. The applicant then alleges, in para. 8 of the statement of claim, that:

8. Each of the representations referred to in

paragraphs (6) and (7) were (sic) made in

trade or commerce and was misleading or

deceptive or was likely to mislead or

deceive.

Particulars are then given in eight paragraphs. In many respects, the material contained in the particulars is better to be understood as if it was contained in allegations pleaded in the statement of claim; senior counsel for the respondent in propounding his client's strike out motion proceeded on this footing, and I shall do likewise. Accordingly, I turn to set out the particulars to para. 8.

(i) Brochures were not delivered to every

household in the Post Office areas to

which brochures were delivered after

lodgment with the Respondent of the

brochures by or on behalf of the

Applicant in accordance with the

Respondent's directions.

(ii) The brochures were not delivered at

all to the following areas; notwith-

standing the lodgment with the

Respondent of brochures by or on

behalf of the Applicant in accordance

with the Respondent's directions.

Civic Square, ACT Kippax, ACT

Fyshwick, ACT Darlinghurst, NSW

Pennant Hills, NSW Indooroopilly, QLD

Yeronga, QLD

(iii) In the Post Office areas to which

brochures were delivered after

lodgment in accordance with the

Respondent's directions a number of

households did not receive the

brochure. (There follows a list of

more than one hundred post office

areas which, it is alleged, contained

such households.)

(iv) The Respondent advised the Applicant

wrongly as to the correct number of

households in certain postal areas,

as a consequence of which were not

and could not be delivered to all

households in such areas. In

particular Australia Post incorrectly

advised the number of households in

the following areas:

(a) Miranda

(b) Thirroul

(c) Balmain

(d) Glenorie

(v) The right of recourse against

Australia Post is limited by the

provisions of section 104 of the

Postal Services Act.

(vi) The Respondent did not deliver

brochures presented to it by the

Applicant within three working days

after receipt thereof, not including

the first working day of such week,

nor within a reasonable time.

(vii) The rate of acceptance as at 31st

August, 1988 for the brochure has been:

(a) by Post Code area response 0.18%

(b) by product order response 0.26%

(viii) The Respondent has delivered

brochures to only approximately 30%

of households in Australia.

In paragraphs 9 and 10 of the statement of claim, the applicant alleges that it would not have entered into the contract if the respondent had not made the representations referred to in paras. 6 and 7, and that as a consequence of entering into the contract, and as a consequence of the matters I have just listed, the applicant has suffered loss and damage.

11. Paragraphs 11, 12 and 13 are in the following terms:

11. Further or alternatively, the Applicant, in

performance of its obligations under the

Agreement has presented 4,659,077 brochures

to the Respondent for distribution in

accordance with the terms of the Agreement

and the directions of the Respondent and has

paid to the Respondent a sum of $70,087.15

towards its charges in respect of the

delivery of same. In addition the Applicant

has lodged a security deposit of $30,000.00

in the name of the Respondent with the

Westpac Banking Corporation Limited (sic).

12. In purported performance of its obligations

under the said Agreement the Respondent has

delivered brochures to approximately 30% of

households in the postal areas for which the

Applicant has provided brochures.

13. As a consequence of the Respondent's said

breach of contract the Applicant has

suffered loss and damage.

12. In paras. 14 and 15, the applicant puts a claim in tort. The allegation is that in the circumstances the respondent owed to the applicant a duty of care to ensure that brochures presented to it by the applicant "were delivered efficiently and to all households in the areas in which such brochures were delivered to Post Offices for distribution to households" (para. 14). It is then alleged (in para. 15) that in breach of this duty of care, the respondent has failed to deliver the brochures delivered to it by the applicant efficiently, has failed to deliver brochures presented to it for delivery to all households in the areas for which brochures were delivered to post offices for distribution to households and has failed to advise the applicant of the correct number of household in certain areas.

13. Finally, in para. 16 it is alleged that "as a consequence of the said breach of duty" the applicant has suffered loss and damage. Particulars of loss are then given, identifying substantial sums.

14. The gist of the claim is for the recovery pursuant to s. 82 of the TP Act of alleged loss and damage suffered by the applicant by conduct of the respondent in contravention of s. 52 of the TP Act, together with claims in the accrued jurisdiction of the Court for breach of contract and in tort. Section 52 does not itself create liability nor vest in any party any cause of action in the ordinary sense of that term; it establishes a norm of conduct, failure in observance of which may entail various consequences, one of which is liability to suffer recovery under s. 82 of the amount of loss or damage: Tobacco Institute of Australia Ltd. v Australian Federation of Consumer Organisations Inc. (1988) ATPR 40-916.

15. The respondent submits that the statement of claim discloses no such reasonable causes of action, and that this fatal defect is the result of the operation of sub-s. 104 (1) of the Postal Services Act 1975 (Cth.) ("the Postal Services Act"). The claim in tort was not subjected to a separate attack on the ground that may be suggested by Tai Hing Cotton Mill Ltd. v Liu Chong Hing Bank Ltd. (1986) AC 80 at 107-108, namely that the content of the relationship between the parties would ordinarily be found in the terms of their contract; any such submission would have encountered difficulties presented by Hawkins v Clayton (1988) 62 ALJR 240 at 241, 255-259.

The Postal Services Act

16. The Postal Services Act came into operation on the day on which the Post and Telegraph Act 1901 ("the 1901 Act") was repealed: see Postal and Telecommunications Commissions (Transitional Provisions) Act 1975, sub-s. 2 (1), and s. 4, Australian Postal Commission v Dao (1985) 3 NSWLR 565 at 585-586, affd. [1987] HCA 13; (1987) 162 CLR 317. The same procedure was followed with the commencement of the Telecommunications Act 1975.

17. In its original form, s. 104 of the Postal Services Act provided as follows:

104. (1) Proceedings do not lie against the

Commission, an officer or employee of

the Commission, a person acting for

or on behalf of the Commission under

a contract with the Commission or an

employee of such a person in respect

of any loss or damage suffered by a

person by reason of any default,

delay, error, omission or loss in the

receipt, transmission or delivery of

postal articles or of money by post

or of articles transmitted by the

courier service.

(2) Where money transmitted by post is

paid to the person applying for

payment of the money, the Commission

is not liable to any person in

respect of the payment of those

moneys unless the officer of employee

making payment of the moneys is

guilty of fraud or wilful mis-

behaviour in connexion with the

payment of the moneys.

(3) A reference in this section to the

receipt, transmission or delivery of

postal articles includes a reference

to any dealing with postal articles

in a manner provided for by the

regulations or the By-laws.

As s. 104 stood at the time of the events complained of in the statement of claim, sub-s. (1) had been amended by s. 21 of the Postal and Telecommunications Amendment Act 1983. The concluding words "by post or of articles transmitted by the courier service" had been deleted, and sub-s. (2) had been expanded by the insertion of the words "by courier service or by electronic mail service" after the opening words "Where money transmitted by post". Finally, it may be noted that as a result of the 1988 Amendment Act, the words "officer or" are removed from sub-ss. (1) and (2).

18. The expression "postal article" means an article transmissible by the post, the courier service or an electronic mail service (sub-s. 3 (1)). The reference in sub-s. 104 (2) to the transmission of moneys is a reference to the service provided by the Commission for the purpose of enabling persons to pay money to the Commission for payment to another person (sub-s. 3 (2)). The courier service is provided for in s. 10. Electronic mail services transmit by means of electromagnetic energy information contained in documents provided to and by the Commission (sub-s. 10A (1)).

19. The reliance by the Commission in the present proceedings is upon sub-s. 104 (1), rather than sub-s. 104 (2).

20. The Postal Services Act, before its amendment by the 1988 Amendment Act, reposed in the Commission functions (s. 6), duties (s. 7) and powers (s. 9). These provisions are not relevantly changed by the 1988 Amendment Act. The Commission shall perform its functions in such a manner as will best meet the social, industrial and commercial needs of the Australian people for postal services (s. 7). The Commission's functions include the operation of postal services for the transmission of postal articles and the doing of anything incidental or conducive to the operation of those services; the Commission's powers extend to the doing of all things necessary or convenient for or in connection with or as incidental to the performance of its functions under the Postal Services Act. Section 18 empowers the Commission, with the approval of the responsible Minister, to fix and vary rates of postage. The Commission may enter into agreements with any person to transmit postal articles of a particular kind at special rates (s. 20). Provisions such as those in s. 85 of the Act, which create various offences (e.g. carrying or conveying certain letters for reward) give the Commission privileges which have some characteristics of a monopoly.

21. The Postal Services Act provides that nothing in s. 7 shall be taken "to impose on the Commission a duty that is enforceable by proceedings in a court": sub-s. 7 (3) (b). But this does not touch s. 6 and in John Fairfax Ltd. v Australian Postal Commission (1977) 30 FLR 444, it was said that the limited terms of sub-s. 7 (3) (b) supported the inference that there were duties imposed upon the Commission by the legislation which were enforceable by an individual in legal proceedings. On the other hand, Moffitt P. (with whom Reynolds JA agreed) was of the view (at 137) that a contract to deliver mail to a person would not be inferred simply because mail addressed to that person was received by the Commission, and concluded that the circumstance that the appellant had leased a box from the respondent did not provide any basis to infer a contract for the provision of mail services.

22. Section 24 of the Postal Services Act in its original form provided that the Commission was a body corporate with perpetual succession and a common seal which might acquire, hold and dispose of real and personal property and sue and be sued in its corporate name; the Commission was not subject to any requirement, obligation, liability, penalty or disability under a law of a State or Territory to which the Commonwealth was not subject. Section 25 provided for the appointment of Commissioners by the Governor-General.

23. Section 24 of the Postal Services Act is repealed by s. 10 of the 1988 Amendment Act. However, as I have indicated, that Act inserts into the principal Act a new s. 5 which provides that the Australian Postal Commission is preserved and continued in existence under the name of the Australian Postal Corporation. The new s. 5A states that the Corporation continues to be a body corporate and that it shall have a seal, may acquire, hold and dispose of real and personal property, and may sue and be sued in its corporate name. There shall be a board of directors (s. 24) appointed by the Governor-General (s. 34).

24. In Australian Postal Commission v Dao (1985) 3 NSWLR 565, the New South Wales Court of Appeal referred to s. 69 of the Constitution which provided that on a date or dates to be proclaimed by the Governor-General after the establishment of the Commonwealth, the Departments of Posts Telegraphs and Telephones in the Public Service of each State should become transferred to the Commonwealth. Further, in addition to the concurrent power in s. 51 (v) of the Constitution to make laws with respect to postal, telegraphic, telephonic and other like services, s. 52 of the Constitution provides that the Parliament shall have exclusive power to make laws for the peace, order and government of the Commonwealth with respect to matters relating to any department of the Public Service, the control of which is by the Constitution transferred to the Executive Government of the Commonwealth. In Australian Postal Commission v Dao (supra), the majority of the New South Wales Court of Appeal accepted the submission that the Commission was successor to the Departments of Posts in each State which had been transferred to the Commonwealth, so that, by reason of s. 52 (ii) of the Constitution, the Parliament of the Commonwealth had exclusive power to make laws with respect to matters relating to the Commission.

25. In Bolwell v Australian Telecommunications Commission (1982) 61 FLR 154, Smithers J. held that the Australian Telecommunications Commission, established by the Telecommunications Act 1975 as the companion statutory authority which, together with the Australian Postal Commission, inherited the functions which at federation were transferred from the colonial services to the Postmaster- General's Department, was an emanation of the Crown in right of the Commonwealth; this had the result that the Australian Telecommunications Commission was not bound by the provisions of s. 5 of the Conciliation and Arbitration Act 1904 which provided inter alia that an employer should not dismiss an employee in certain circumstances.

26. It is against this background that I turn to consider the grounds upon which the respondent contends the statement of claim should be struck out. I begin with the claims in contract and tort.

27. I have set out earlier in these reasons the text of s. 104 of the Postal Services Act. It may be compared with provisions previously made in the 1901 Act.

28. Part IX of the 1901 Act had been headed "Notice and Limitation of Actions". Section 157 provided that any action against the Postmaster-General or any officer or servant of the Department for anything done or omitted to be done in pursuance of the 1901 Act or the regulations thereunder should be commenced within six months after the act committed or omitted, and not afterwards. There was also a requirement that the action should not be commenced until one month after notice had been delivered to the defendant. Section 159 stated that "an action or other proceeding shall not be maintainable" against the Crown, the Postmaster-General or any officer of the Department by reason of refusal or delay in payment of the amount of a money order or postal note or on account of any accidental neglect, omission or mistake, or for any other cause. It also provided that no action or other proceeding should be maintainable in respect of a money order or postal note after payment thereof if it was paid without fraud or wilful misbehaviour on the part of the persons sought to be made liable.

158. An action or other proceeding shall not be

maintainable against the King or the

Postmaster-General or any officer of the

Department by reason of any default delay

error omission or loss whether negligent or

otherwise in the transmission or delivery or

otherwise in relation to -

(a) a postal article posted or received

or omitted to be posted or received

under this Act; or

(b) a telegram sent or received or

omitted to be sent or received under

this Act.

30. The provisions of Part IX of the 1901 Act followed closely ss. 129, 130 and 131 of The Post and Telegraph Act 1891 (Q). The exclusion provisions of the current British statute, the Post Office Act 1969, are differently cast to those in this country, as is illustrated by American Express Co. v British Airways Board (1983) 1 All ER 557.

31. However, it is necessary to have regard to the position as it was understood to be under earlier legislation in the United Kingdom. The seventeenth and eighteenth century decisions are discussed by Hodson LJ in Triefus & Co. Ltd. v Post Office (1957) 2 QB 352 and by Stephen J. in Bradley v The Commonwealth [1973] HCA 34; (1973) 128 CLR 557. The position appears to have been that (i) no contract came into existence merely from the entrusting of articles to the Post Office for carriage and delivery at the required rates of postage, (ii) no action in tort whether in detinue, conversion, breach of obligation as a common carrier or otherwise lay for articles lost or destroyed whilst in the custody of the Post Office, (iii) nevertheless, a statutory duty was imposed upon the Post Office to provide a postal service, so that withdrawal or refusal of that service give a member of the public an action at law for damages for breach of statutory duty. The immunity in tort seems partly to have been a product of the general immunity of the Crown in tort; (see Raleigh v Goschen (1898) 1 Ch 73; Bainbridge v Postmaster-General (1906) 1 KB 178), something long since inapplicable to the Commonwealth and the Commission (The Constitution, s. 78, Judiciary Act 1903, s. 56; Breavington v Godleman [1988] HCA 40; (1988) 62 ALJR 447).

32. It will be recalled that in Bradley's Case, the High Court, by majority, held that the Postmaster-General had no power under the 1901 Act, or the regulations made thereunder, to withdraw postal and telecommunication services from any person except in cases for which the Act or regulations expressly provided. Barwick CJ and Gibbs J. (who with Stephen J. constituted the majority) said of s. 158 of the 1901 Act (128 CLR at 571-572):

The section obviously related to actions

and proceedings maintained by reason of

something done in the past in relation to

a postal article or a telegram. The

claims made for a declaration and an

injunction are not of that description;

they are not made by reason of anything

done in relation to any postal article or

telegram, although of course what has

been done in relation to postal articles

lodged by or addressed to the Rhodesia

Information Centre is admissible in

evidence in the proceedings. The present

action, except in so far as it claims

damages, is maintained to secure a

declaration that the direction given was

beyond the power of the Post-master-General

and to prevent unauthorized

action being taken in the future in

pursuance of such direction. The section

accordingly does not protect the

defendants from an action in so far as it

claims a declaration and an injunction.

A claim for damages that rested on any

failure to transmit or deliver a letter

or telegram would, however, be barred.

33. The enactment of s. 104 of the Postal Services Act followed upon Bradley's Case. Section 104 was considered by the New South Wales Court of Appeal in John Fairfax Ltd. v Australian Postal Commission (1977) 30 FLR 444. Moffitt P. (who with Reynolds JA comprised the majority) said of s. 104 (at 451):

This provision proceeds upon the assumption

that a private enforceable legal duty

is owed to appropriate persons, inter

alia, in relation to the transmission and

delivery of postal articles. ... Section

158 in the prior legislation, although in

somewhat different terms, served a

somewhat similar purpose and is referred

to in Bradley's case as not sufficient to

prevent the making of the declaration and

injunction sought, but as excluding a

claim for damages. Section 104 expressly

excludes claims for damages. The

existence of s. 104, as with the prior

s. 158, appears to recognize the

existence of the statutory right

enforceable by an individual, but not to

the extent of recovery of damages.

See also Queensland v Australian Telecommunications Commission [1985] HCA 25; (1985) 59 ALJR 562; Businessworld Computers Pty. Ltd. v Australian Telecommunications Commission (1988) 82 ALR 499 at 506-507.

34. It is unnecessary to decide in the present proceedings whether sub-s. 104 (1) is to be treated as if it constituted a defence or whether the applicant has to show sub-s. 104 (1) does not apply before the applicant makes out the causes of action upon which it sues (cf. Elna Australia Pty. Ltd. v International Computers (Aust.) Pty. Ltd. (No. 2) [1987] FCA 230; (1987) 16 FCR 410 at 415). Although the statement of claim did not canvass sub-s. s. 104 (1), the applicant was prepared to resist the respondent's strike out application as if the applicant had the burden of establishing that sub-s. 104 (1) did not apply.

35. The immediate question is whether sub-s. 104 (1) is an answer to the applicant's claims in contract and tort.

36. There are two precepts of statutory interpretation which provide some particular assistance in deciding this question. First, the provision is to be read in its context, including the other provisions of the statute, other statutes in pari materia and the existing state of the law: K. & S. Lake City Freighters Pty. Ltd. v Gordon and Gotch Ltd. [1985] HCA 48; (1985) 157 CLR 309 at 312, 315, 321. I have endeavoured to provide that context. Secondly, a statutory limitation or exclusion provision such as s. 104 is to be strictly construed for it protects the interests of a statutory authority which is given privileges in the nature of a monopoly for provision of a public service, at the expense of what otherwise would be individual justiciable rights: Australian National Airlines Commission v Newman [1987] HCA 9; (1987) 162 CLR 466 at 471, 476; Queensland v Australian Telecommunications Commission [1985] HCA 25; (1985) 59 ALJR 562 at 563. Thus, such phrases in sub-s. 104 (1) as "in respect of" and "by reason of" are to be construed narrowly rather than generously, as would otherwise be the case.

(i) Section 104 presupposes the existence of

rights and duties otherwise enforceable by

individuals in legal proceedings; the

expression "proceedings" in sub-s. 104 (1)

identifies causes of action in the sense of

the combinations of facts giving rise to the

right to sue: cf. Do Carmo v Ford

Excavations Pty. Ltd. [1984] HCA 17; (1984) 154 CLR 234 at

(ii) As the respondent accepted in its

submissions, even in proceedings to which it

otherwise applies, s. 104 is not concerned

with applications for injunctive or

declaratory relief: John Fairfax Ltd. v

Australian Postal Commission (1977) 30 FLR

(iii) Pursuant to the Postal Services Act and

exclusive of any obligations in contract and

duties in tort, there arise legal duties

enforceable by members of the public against

the Commission in relation to the provision

of postal services; this was understood as

the position under earlier British statutes

when Part IX of the 1901 Act and its

Queensland progenitor of 1891 were were enacted.

(iv) But at the same time it was understood that

no contracts were made in the course of

ordinary dealings with the Post Office

and there were no claims in tort for lost or

destroyed articles, an expression of

outmoded principles of Crown immunity.

(v) Part X of the 1901 Act contained (in s. 157)

a limitation period and requirement of

notice before action done or omitted to be

done "in pursuance of" that Act; it is

inappropriate to embark upon the question of

the effectiveness of such a provision, but

the authorities suggest that there may have

been substantial areas which it did not

reach and where the liability of the

Postmaster-General was unaffected: Firestone

Tire and Rubber Co. (S.S.) Ltd. v Singapore

Harbour Board (1952) AC 452; Board of Fire

Commissioners of New South Wales v Ardouin

[1961] HCA 71; (1961) 109 CLR 105; Davis v Northern

Territory Housing Commission (1984) 71 FLR

85. Sections 158 and 159 dealt in different

terms with the measure of exclusion of

liability in respect of postal articles and

telegrams (s. 158) and money orders and

postal notes (s. 159).

(vi) Section 104 of the Postal Services Act has

no element of the limitation found in the

old s. 157; also, it deals separately with

liabililty for payment to the wrong person

of moneys transmitted by the Commission's

services (sub-s. 104 (2)), and with loss or

damage suffered by reason of default, delay,

error, omission or loss in the receipt,

transmission or delivery of postal articles

or money (sub-s. 104 (1)).

(vii) Further, in my view, in an appropriate

exercise of its express power in s. 20 to

make agreements for transmission of posted

articles at special rates, and its general

powers to do all things necessary or

convenient to be done for or in connection

with or as incidental to the performance of

its statutory function to operate postal

services for the transmission of postal

articles (ss. 6, 9), the Commission may

enter into and perform contracts of the

nature pleaded by the present applicant in

its statement of claim.

(viii) Breach of such a contract by the Commission

will give rise to a cause of action against

it to which s. 104 may apply, depending upon

the proper construction of that provision.

38. The relationship between the Commission and those sending and receiving postal articles in the course of the routine operation of postal services will not be contractual. But it will be within the powers of the Commission to enter into particular agreements, as I have indicated; cf. Director of Posts and Telegraphs v Abbott (1974) 22 FLR 157. The present case provides an example. In my view, the proceedings in respect of loss or damage which sub-s. 104 (1) states do not lie against the Commission, do not include proceedings for breach of contract made as I have described by the Commission pursuant to its powers. In such cases it will be open to the parties to agree upon terms excluding or qualifying what otherwise would be their contractual responsibilities. Any such provision will be interpreted in the light of the admissible evidence and in accordance with the principles explained by the High Court in Darlington Futures Limited v Delco Australia Pty. Limited [1986] HCA 82; (1986) 161 CLR 500.

39. In Director of Posts and Telegraphs v Abbott (supra) at 167-168, 171-172, a case arising under the 1901 Act, there was some discussion in the South Australian Full Court of the impact upon the enforceability of commercial contracts made on behalf of the Postmaster-General of the alleged rule that where the executive is entrusted by statute with discretionary powers, it does not, when making a contract in general terms, undertake to fetter itself in the exercise of its discretion. Shortly thereafter, in Ansett Transport Industries (Operations) Pty. Ltd. v The Commonwealth [1977] HCA 71; (1977) 139 CLR 54 at 74-75, Mason J. described any such rule as too widely stated and his Honour's discussion of the subject has attracted comment (see Rose, "The Government and Contract" in Finn ed., Essays on Contract, pp 242-244).

40. But on the view I take of the construction of the Postal Services Act, no ground is presented for the application of any such rule, whatever its nature or its width. Senior counsel for the respondent described sub-s. 104 (1) as a statutory command addressed even to proceedings in contract. The issue presented thus was not one of the fettering of a discretion reposed by statute in the respondent which affected the performance of contracts. It was whether sub-s. 104 (1) imposed an absolute bar upon the making of contracts, proceedings for breach of which would fall within the terms of sub-s. 104 (1) on their proper construction, or at any rate upon the bringing of such proceedings. My view, as I have indicated, is that the Parliament has not given wide contractual powers to the Commission on the one hand, and imposed with the other a bar of this nature which would so diminish not only the scope for the Commission to present itself to outsiders as an institution with which they might safely enter into contractual relations, but also the value of the rights of those persons if they did enter into certain categories of contract with the Commission.

41. I should add that there was no suggestion that the alleged breaches of contract by the Commission were the product of any exercise of any discretion placed by the statute in the Commission.

42. There was debate on the present application as to the meaning of General Condition 3.2 as incorporated into the agreement pleaded by the applicant. I have set out the text of this provision earlier in these reasons. It refers to the immunity from action under s. 104. There may be much to be said for the view that this reference does no more than remind the applicant that s. 104 applies according to its terms and that the reference to s. 104 does not amount to a contractual exclusion of all liability for loss or damage suffered by the applicant by reason of any default, delay, error, omission or loss in the receipt, transmission or delivery of postal articles the subject of the contract. The balance of General Condition 3 may support this interpretation. Alternatively, the effect of General Condition 3 may be to exclude liability in contract only in respect of defects in manner and time of delivery, but no further.

43. On a strike out application, it is inappropriate to attempt to resolve these issues. The point is that the respondent has not succeeded with its submission that by its own force, sub-s. 104 (1) applies to the claim for breach of contract pleaded against it in these proceedings.

44. In my view, the proceedings which by force of sub-s. 104 (1) do not lie against the Commission, its employees, persons acting for or on behalf of the Commission and their employees, are those proceedings which otherwise would lie against those persons in tort or for breach of statutory duty or in quasi contract, provided that the proceedings answer the description of being in respect of any loss or damage by reason of any default, delay, error, omission or loss in the receipt, transmission or delivery of postal articles or money.

45. What then of the claim in tort in the present proceedings? Paragraph 14 of the Statement of Claim alleges a duty of care to ensure that brochures presented to the Commission by the applicant were delivered efficiently and to all households in the areas in question. The duty is said to arise "in the circumstances", which I take to mean the representations alleged to have been made in negotiations for the contract, and the terms of the contract itself. The breaches of duties are alleged (in para. 15) to have been in failure to deliver brochures efficiently, failure to deliver to all households in the relevant areas, and failure to advise the applicant of the correct number of houses in certain areas. Particulars are then appended to para. 16 of the statement of claim of the loss and damage allegedly suffered by the applicant in consequence of the breach of duty.

46. A claim in detinue or conversion would, in my view, plainly have fallen within the terms of sub-s. 104 (1). I accept the submission by the applicant that the expressions "in respect of any loss or damage" and "by reason of" do not, in a provision of this kind, have the amplitude of meaning that they would otherwise have. I bear in mind also that in s. 158 of the 1901 Act, the words "default, delay, error, omission or loss" were qualified by the words "whether negligent or otherwise", a phrase not found in sub-s. 104 (1). Nevertheless, in my view, when one reads against the words of sub-s. 104 (1) the allegations in paras. 14, 15 and 16 of the statement of claim, it is correct to characterise what is there pleaded as proceedings in respect of loss or damage suffered by the applicant by reason of default, delay, error, omission or loss in the receipt, transmission or delivery of postal articles. Accordingly, paras. 14, 15 and 16 of the statement of claim should be struck out. I do not suggest that all claims in tort against the Commission will be reached by sub-s. 104 (1); it will be necessary in each case to put what is pleaded against the terms of the legislation.

47. There was some suggestion in argument that the particulars of loss appended to para. 16 applied not merely to the count in negligence, but to the other counts as well. In my view, this is now how the particulars should be read, and the striking out of para. 16 will, in any event, make it appropriate for the respondent to seek particulars of the loss claimed in respect of the balance of the allegations in the statement of claim.

48. There remains the allegations as to contravention of the TP Act.

49. The recovery of loss or damage is, as the respondent submitted, the gist of the claim under s. 82 of the TP Act. That claim is maintainable because of the alleged contravention of s. 52 of the TP Act by reason of misleading or deceptive conduct in trade or commerce. The applicant pleads that it has suffered loss and damage as a consequence of entering into the contract alleged against the respondent, and that it would not have entered into the contract if the Commission had not made the representations alleged, in contravention of s. 52 of the TP Act. The applicant also pleads that it has suffered loss or damage as a consequence of the misleading and deceptive character of those representations. When one then looks to the alleged breaches of contract and to the manner in which the representations are said to have been misleading and deceptive, it is, in my view, correct to say, within the meaning of sub-s. 104 (1) of the Postal Services Act, that the proceedings are in respect of loss or damage suffered by the applicant by reason of default, delay, error, transmission or loss in the receipt, transmission or delivery of postal articles.

50. However, that is not the end of the matter. There is a threshold question. It is whether the proceedings for contravention of the TP Act are proceedings to which, on its proper construction, sub-s. 104 (1) of the Postal Services Act applies. The issue is one of ascertaining the relationship between these federal statutory provisions.

51. In my view, the answer lies in the terms of the TP Act as it was amended in 1977, that is to say after the enactment of the Postal Services Act. It is true that s. 104 of the Postal Services Act was amended by s. 21 of the Postal and Telecommunications Amendment Act 1983, but the amendments were of a minor character. I have described them earlier in these reasons.

52. The Trade Practices Amendment Act 1977 came into force on 1 July 1977. It inserted into the TP Act s. 2A as follows:

2A. (1) Subject to this section, this Act

(other than Part X) binds the Crown

in right of the Commonwealth in so

far as the Crown in right of the

Commonwealth carries on a business,

either directly or by an authority of

the Commonwealth.

(2) Subject to the succeeding provisions

of this section, this Act applies as

if -

(a) the Commonwealth, in so far as

it carries on a business

otherwise than by an authority

of the Commonwealth; and

(b) each authority of the Common-

wealth (whether or not acting

as an agent of the Crown in

right of the Commonwealth) in

so far as it carries on a

business, were a corporation.

(3) Nothing in this Act renders the Crown

in right of the Commonwealth liable

to be prosecuted for an offence.

(4) Part IV does not apply in relation to

the business carried on by the

Commonwealth in developing, and

disposing of interests in, land in

the Australian Capital Territory.

The term "corporation" is defined in sub-s. 4 (1) so as to include a trading or financial corporation formed in Australia, and a corporation incorporated in a Territory. The expression "an authority of the Commonwealth" is defined in sub-s. 4 (1) as meaning, inter alia, a body corporate established for "a purpose of the Commonwealth by or under a law of the Commonwealth". I have referred to provisions of the Constitution and of the Postal Services Act which make it plain that the applicant is such a body corporate.

53. In Tytel Pty. Ltd. v Australian Telecommunications Commission (1986) 67 ALR 433, it was held in this Court that the Australian Telecommunications Commission, being a body corporate established for a purpose of the Commonwealth by or under a law of the Commonwealth (Telecommunications Act 1975) was "an authority of the Commonwealth for the purposes of that definition". The Commission carried on a number of businesses and in those circumstances s. 2A of the TP Act applied to the Commission as if it were a corporation.

54. The circumstances giving rise to the applicant's claim under the TP Act plainly arise out of the carrying on by the respondent of a business in the performance of its functions under s. 6 of the Postal Services Act to operate postal services for the transmission of postal articles, and to have regard to the need to operate its services as efficiently and as economically as practicable (sub-s. 7 (2) (b) (ii)).

55. The result then is that the TP Act (other than Part X which is not relevant to the present proceedings) binds the Crown in right of the Commonwealth in so far as the Commonwealth carries on business by an authority of the Commonwealth, and the TP Act applies as if the Commission, as an authority of the Commonwealth, were a corporation. This is subject to the qualification (not here relevant) that the Crown is not liable to prosecution for an offence.

56. What then is the relationship between the relevant provisions of the two statutes? The first task is one of interpretation so as to ascertain the meaning and operation of the relevant provisions. This I have attempted above. The second task, to adapt the language of Walsh J. in Breskvar v Wall (1972) 126 CLR 376 at 406, is to determine whether the provisions of s. 4 of the Trade Practices Amendment Act 1977, which inserted s. 2A into the TP Act, effected an implied repeal pro tanto or an implied amendment of sub-s. 104 (1) of the Postal Services Act. This will be the result if the two provisions are inconsistent in their application to particular proceedings so that the operation of sub-s. 104 (1) is excepted or excluded with respect to proceedings which lie under the TP Act against the Commission by reason of the application of that statute to the Commission as if it were a corporation within the meaning of the TP Act: see Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 at 7, 10; Travinto Nominees Pty. Ltd. v Vlattas [1973] HCA 14; (1973) 129 CLR 1 at 33-35.

57. What is meant in this context by describing as pro tanto inconsistent the operation of two statutes of the same legislature? To say that to the extent of any inconsistency, the later provision prevails is to apply a rule of law, rather than merely a canon of statutory interpretation, as Professor Dickerson has explained ("The Interpretation and Application of Statutes", pp 249-250). It is a rule with two elements, viz.(i) the meaning given to the term "inconsistent" and (ii) the preference given to the later statute over the earlier statute, rather than vice versa (a logical possibility).

58. The term "inconsistent" is one whose meaning is by no means self-evident when applied to the relationship between two laws: see the range of possible meanings canvassed by Dr. Tammelo in "The Tests of Inconsistency Between Commonwealth and State Laws" (1957) 30 ALJ 496. In Australia, the term "inconsistency", used in relation to the operation of laws, invariably directs attention to s. 109 of the Constitution. However, that does not necessarily provide safe guidance in a case which concerns statutes of the same legislature. Speaking of the relationship between successive State statutes, Fullagar J. said (Butler v Attorney-General for the State of Victoria [1961] HCA 32; (1961) 106 CLR 268 at 276):

It should be pointed out in this

connexion that the position where

contrariety is suggested between an

earlier and a later State statute is not

quite the same as the position where

inconsistency, within the meaning of

s. 109, is suggested between a

Commonwealth Act and a State Act. The

Commonwealth Parliament is, within its

sphere of power, paramount legislature,

and there can be no presumption either

that it did, or that it did not, intend

by its own Act to supersede or preclude

from operation a State Act. But, where

the comparison to be made is between two

State Acts, there is a very strong

presumption that the State legislature

did not intend to contradict itself, but

intended that both Acts should operate.

It will often be found that the two may

reasonably and properly be reconciled by

reading the one as subject to the other.

59. It is true that in Butler v Attorney-General (Victoria) (supra) at 281, Kitto J. spoke of the later State statute as having "every appearance of intending to cover the ground comprehensively" and Menzies J. (at 286) described it as making "an exhaustive statement". However, in general, where legislation of the same legislature is under consideration, the Courts have tended to eschew the application of any "covering the field" doctrine derived from federal constitutional law. In Goodwin v Phillips (supra) at 10, Barton J. spoke in terms of "repugnancy". In Butler v Attorney-General (Victoria) (supra), Kitto J., earlier in his judgment, at 280 had approached the question by asking whether the two statutes "could stand together", and Fullagar J. (276) spoke of "contrariety", Taylor J. (at 285) spoke of "direct conflict", and Windeyer J. (at 290) asked whether the two statutes were clearly and indisputedly contradictory, displaying such repugnancy that they would not be reconciled. Again, in Travinto Nominees Pty. Ltd. v Vlattas (supra) at 34, Gibbs J., in discussing the decision in Breskvar v Wall (supra), described that case as one in which it was held that the two statutes in question "could stand together".

60. The Courts thus have approached the matter by use of criteria apparently derived from the law as to "textual collision" for the purposes of s. 109 of the Constitution, and "repugnancy" as understood in decisions dealing with s. 2 of the Colonial Laws Validity Act 1865, 28 & 29 Vic. c. 63 (Imp.): see Union Steamship Co. of New Zealand Ltd. v The Commonwealth [1925] HCA 23; (1925) 36 CLR 130 at 158-159; Grace Bros. Pty. Ltd. v Magistrates of the Local Courts of New South Wales (1989) ATPR 40-921.

61. The evident purpose and operation of s. 2A of the Trade Practices Amendment Act 1977 would be defeated if sub-s. 104 (1) of the Postal Services Act were to be treated as an answer to the proceedings under the TP Act brought here. The Postal Services Act would deny the competence proceedings laid against the Commission to recover loss or damage suffered by conduct in contravention of s. 52 of the TP Act. The Postal Services Act would thus prohibit the exercise of rights, or deny the existence of rights, given by the other statute. There is thus to be found the direct hostility between contradictory propositions that is the hallmark of "repugnancy" in the sense understood in the authorities I have mentioned.

62. The present is not a case of the kind considered by the High Court in State of South Australia v Tanner (7 February 1989, unrep.) where there was no inconsistency between two South Australian statutes because they could stand together and operate cumulatively so that the citizen was obliged to observe the regulatory regimes established by each statute.

63. Accordingly, sub-s. 104 (1) of the Postal Services Act is no answer to the claim under the TP Act propounded by the applicant in the statement of claim.

64. The claims in contract and for contravention of the TP Act stand, but the allegations in paras. 14, 15 and 16, which plead the cause of action in tort, should be struck out.

65. It remains to consider what the respondent contended was certain embarrassing material in the statement of claim. Sub-para. 6 (vi) pleads a representation by the respondent to the applicant that if Australia Post failed to deliver,there would be a right of recourse against it. It is then pleaded in para. 8 that that representation was misleading or deceptive or was likely to mislead or deceive. The relevant appended particular (v) is that the right of recourse against Australia Post is limited by the provisions of s. 104 of the Postal Services Act.

66. The right of recourse is limited, though not totally excluded by s. 104, in the circumstances of this case, as indicated by the fate of paras. 14, 15 and 16 of the statement of claim. So understood, there is, in my view, nothing contradictory and nothing embarrassing in the provisions of sub-para. 6 (vi) and para. (v) of the particulars to para. 8 of the statement of claim.

67. Accordingly, the orders are that paras. 14, 15 and 16 of the statement of claim filed 11 October 1988 be struck out, and that the respondent's motion filed 3 November 1988, is otherwise dismissed. I will hear the parties as to costs.