Seven Network Limited v Australian Competition and Consumer Commission

Seven Network also sought an order in the nature of certiorari in relation to the issue of the Notice.

27 The primary Judge dismissed the application on 9 July 2004: [2004] FCA 885. Seven Network's appeal was expedited and the hearing of the appeal took place on 31 August 2004.

THE STATUTORY FRAMEWORK 28 Section 52(1) of the TP Act,which is within Div 1 of Part V, provides that: 'A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.'

Section 51A(1) of the TP Act provides that for the purposes of Div 1 of Part V:

'… where a corporation makes a representation with the respect to any future matter … and the corporation does not have reasonable grounds for making the representation, the representation shall be taken to be misleading'.

Section 51A(2) states that, for the purposes of the application of s 51A(1) in relation to a representation with respect to any future matter,

'the corporation shall, unless it adduces evidence to the contrary, be deemed not to have reasonable grounds for making the representation'. 29 Section 6(3) of the TP Act extends the application of the provisions of Div 1 of Part V, including s 52. They have the effect they would have if: '(a) those provisions … were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct … takes place in a radio or television broadcast; and (b) a reference in those provisions to a corporation included a reference to a person not being a corporation'.

30 Section 65A of the TP Act limits the operation of certain provisions, including s 52, in their application to the media and others carrying on the business of providing information. Section 65A(1) relevantly provides as follows: '(1) Nothing in section 52 … applies to a prescribed publication of matter by a prescribed information provider, other than: (a) a publication of matter in connection with: (i) the supply or possible supply of goods or services; … (iii) the promotion by any means of the supply or use of goods or services; or … where: … (vi) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with: (A) a person who supplies goods or services of that kind …; or … (b) a publication of an advertisement.'

31 There was no dispute before the primary Judge nor in this Court that Seven Network and its wholly owned subsidiaries are 'prescribed information providers' and that the publications identified in the Notice were 'prescribed publications' within the meaning of s 65A(1) of the TP Act. 32 Section 163A of the TP Act authorises a person to seek a declaration from the Court in relation, inter alia, to the validity of anything done or purporting to have been done under the TP Act.

THE NOTICE 33 The Notice recites that the Chairman of the ACCC has reason to believe that Seven Network is capable of furnishing information relating to matters that constitute or may constitute contraventions of s 52 of the TP Act. The Notice identifies three such matters. 34 The first is as follows: 'On 31 October 2003, Seven Network (or a wholly owned subsidiary of Seven Network) caused the broadcast of an item on Channel 7's Today Tonight television program featuring a mentoring program marketed under the name 'Wildly Wealthy Women' during which television program representations were made by Seven Network (or a wholly owned subsidiary of Seven Network) and/or Dymphna Boholt and Sandy Forster (the principals of the mentoring program) to the following effect: (a) that participants in the mentoring program would become wealthy through investing in property; (b) that participants in the mentoring program would become wealthy by investing in property even if they have no money at present; (c) that participants in the mentoring program would become millionaires by investing in property; when in fact Seven Network (or the relevant wholly owned subsidiary of Seven Network) and/or Dymphna Boholt and Sandy Forster had no reasonable grounds for making such representations. A copy of the transcript of the item is attached hereto, at "Attachment A".'

35 The second matter is identified in the Notice in virtually identical terms, except that the broadcast is said to have taken place on 30 January 2004. The transcript of that broadcast is also attached. The third matter relates to identical representations said to have been made by Seven Network on the Today Tonight website in circumstances where it had no reasonable grounds for making such representations. 36 In the Notice, the Chairman requires Seven Network to furnish to the ACCC the following information specified in the Schedule: '1. State the name and address of the person who was the Executive Producer of the Today Tonight television program broadcast on 31 October 2003. 2. State the name and address of the person who was the Executive Producer of the Today Tonight television program broadcast on 30 January 2004. 3. State the name and address of each person responsible for the content of the item broadcast on Channel 7's Today Tonight television program on 31 October 2003 which featured a mentoring program marketed under the name 'Wildly Wealthy Women'. 4. State the name and address of each person responsible for the content of the item broadcast on Channel 7's Today Tonight television program on 30 January 2004 which featured a mentoring program marketed under the name 'Wildly Wealthy Women'. 5. State the name and address of the compere of the item broadcast on Channel 7's Today Tonight television program on 31 October 2003 which featured a mentoring program marketed under the name 'Wildly Wealthy Women'. 6. State the name and address of the compere of the item broadcast on Channel 7's Today Tonight television program on 30 January 2004 which featured a mentoring program marketed under the name 'Wildly Wealthy Women'. 7. State the name and address of each person responsible for: (a) the text; and (b) the publication; of the content on the website http://www.todaytonight.com.au in respect of the Wildly Wealthy Women' mentoring program at any time in the period 1 October 2003 to the date of this Notice'.

THE PRIMARY JUDGMENT 37 The primary Judge first addressed Seven Network's contention that the matters identified in the Notice were incapable of constituting contraventions of s 52 of the TP Act by reason of the exemption provided by s 65A for prescribed information providers. Her Honour observed that the first two matters identified in the Notice involved assertions that: (a) Seven Network (or one of its subsidiaries) may have contravened s 52 of the TP Act; (b) the promoters of the WWW Program may have contravened s 52 of the TP Act; or (c) Seven Network (or one of its subsidiaries) and the promoters together may have contravened s 52 of the TP Act.

38 Her Honour pointed out that s 65A could have no operation in respect of the promoters' conduct, which came within s 52 because of the extended operation given to that section by s 6(3) of the TP Act. Her Honour accordingly rejected the contention that the promoters' conduct was incapable of constituting a contravention of s 52. 39 The primary Judge noted the ACCC's concession that s 65A applied to Seven Network. But that did not mean, in her Honour's view, that Seven Network was incapable of contravening s 52 by reason of the items broadcast on the Today Tonight program. The protection accorded by s 65A to a prescribed publication by a prescribed information provider did not extend, for example, to the publication of an advertisement (s 65A(1)(b)) or to the publication of matter in connection with the possible supply of services where the publication was made pursuant to a contract, arrangement or understanding with a person who supplies services of the relevant kind (s 65A(1)(a)). It was at least 'theoretically possible' that investigations would reveal that publication of the items came within s 65A(1)(a) or (b). It followed that the first two matters were not incapable of constituting contraventions of s 52 by Seven Network. Her Honour considered that the same reasoning applied to the third matter identified in the Notice. 40 Seven Network's second submission was that it had not made any representations of the kind identified in the Notice. The primary Judge considered that the appropriate test was whether she could be satisfied that it could not be established that Seven Network (or one of the subsidiaries) had made the representations. Her Honour observed that the only evidence before her was constituted by the transcripts of the two Today Tonight programs and a copy of the material that had appeared on the Today Tonight website. She observed that additional evidence might be tendered at any hearing, for example videos of the programs and evidence of other material placed on the Today Tonight website. 41 The primary Judge noted that the promoters had used the television broadcast to promote the WWW Program 'enthusiastically'. Her Honour considered that the statements made by the compere in both Today Tonight programs were not incapable of supporting a finding that Seven Network (or one of its subsidiaries) had itself made the representations identified in the Notice. While some remarks made in the television programs were capable of conveying scepticism, whether they did or not could not be determined from the transcript of the programs alone. 42 Her Honour was also not satisfied that the material appearing on the Today Tonight website was incapable of supporting a finding that the website conveyed the representations identified in the Notice. 43 Seven Network's third argument was that s 155 of the TP Act could not legitimately be used to identify possible witnesses in respect of elements of asserted contraventions of the TP Act. This argument was founded on the decision of Bowen CJ in Riley McKay Pty Ltd v Bannerman (1977) 15 ALR 561. Her Honour, however, distinguished Riley McKay on the basis that each of the individuals whose name and address were sought in the Notice was more than just a possible witness on the issue of whether the person or persons who made the representations had reasonable grounds to make them. Each of them was a person who might reasonably be expected to have information touching on whether s 65A of the TP Act had the effect of rendering s 52 inapplicable to the publication of the relevant matter by Seven Network (or one of its subsidiaries). Her Honour therefore rejected Seven Network's third contention. 44 In the result, her Honour dismissed the application with costs.

SEVEN NETWORK'S SUBMISSIONS 45 Seven Network repeated the three arguments that had been put to and rejected by the primary Judge. Mr Rares SC, who appeared with Mr Clarke for Seven Network, submitted that if it could not be established that Seven Network had made the representations identified in the Notice it must follow that the Notice was invalid. This was because the information specified in the Schedule to the Notice had been sought on the basis that Seven Network might have contravened s 52 of the TP Act. It was not consistent with the strict approach to the construction of s 155 of the TP Act required by cases such as George v Rockett (1990) 170 CLR 104, at 111-112, to attempt to sever the valid parts of the Notice from the invalid. 46 In addition, Mr Rares argued that the Notice was invalid because it did not refer to s 65A of the TP Act, in particular, to the possible applicability of the exceptions to s 65A(1). He pointed out that the Notice specifically alleged that neither the Seven Network nor the promoters had reasonable grounds for making the representations identified in the Notice (TP Act, s 51A). Yet the Notice made no reference to s 65A, nor to the need to investigate whether the Today Tonight programs constituted publication of an advertisement (s 65A(1)(b)) or had been broadcast pursuant to an arrangement or understanding with persons who supply good or services of the relevant kind (s 65A(1)(a)(vi)). In the absence of any such reference, it was impossible, so Mr Rares submitted, to determine whether the information sought by the ACCC was sufficiently connected with the alleged conduct.

The Construction of s 155(1) of the TP Act 47 The power conferred by s 155(1) of the TP Act is conditioned (relevantly) on: (i) the Chairperson of the ACCC having reason to believe that a person is capable of providing information (ii) relating to a matter that constitutes or may constitute a contravention of the TP Act. If these preconditions are satisfied, subject to any other requirements that may be read into s 155(1), the Chairperson may require the person concerned to furnish that information. 48 Section 155(1) of the TP Act has been said to provide the ACCC (as it is now called) with a 'powerful investigative tool': SA Brewing Holdings Ltd v Baxt (1989) 23 FCR 357, at 359, per Fisher and French JJ. However, the power conferred on the ACCC and its officers is given for the purpose of enabling the ACCC to perform its functions under the TP Act: Riley McKay Pty Ltd v Bannerman, at 566, per Bowen CJ; WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175, 187, per Lockhart J. This qualification receives support both from the language of s 155(1), considered in its context, and from the principle that statutory provisions are not to be construed as abrogating important common law rights or immunities in the absence of clear words or necessary implication: The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543, at 553 [11], per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 49 The authorities have established a number of propositions concerning the interpretation of s 155(1) of the TP Act. They include the following: (i) In a context where refusal or failure to comply with a s 155 notice is punishable by imprisonment or fine, the notice must: (a) convey with reasonable clarity to the recipient the information that must be furnished; and (b) disclose that the ACCC is entitled to require the recipient to furnish the specified information: Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368, at 374, per curiam. (ii) The second of these requirements will not be satisfied unless it appears from the notice that the information sought is information 'relating' to one or more 'matters' of a kind described in s 155(1): Pyneboard v TPC, at 375; SABrewing v Baxt, at 369-370; Bannerman v Mildura Fruit Juices Pty Ltd (1984) 2 FCR 581, at 584, per Bowen CJ and Neaves J. However, the question whether a notice discloses the necessary 'relatedness' is not to be approached in an 'over-technical or hypercritical way': Pyneboard v TPC, at 376. Moreover, the 'relatedness' is to a proper inquiry into the suspected offences: Panelboard Pty Ltd v Trade Practices Commission (1981) 59 FLR 395, at 407, per Fox J. (iii) Section 155(1) does not require the Chairperson of the ACCC to have 'reason to believe' that a specified matter constitutes or may constitute a contravention of the TP Act. The Chairperson must, however, have reason to believe that the relevant person is capable of furnishing information relating to the matter specified in the notice: WA Pines v Bannerman, at 179, per Brennan J (with whom Bowen CJ agreed); TNT Australia Pty Ltd v Fels [1992] ATPR 41-190, at 40,598-40,599, per Gummow J. It follows that the Chairperson or other officer must believe that the person to whom the notice is directed is capable of furnishing information relating to the facts known or suspected: WA Pines v Bannerman, at 180. In addition, there must be facts in existence which are sufficient to induce that belief in a reasonable person: George v Rockett, at 112. (iv) The word 'matter' in s 155(1) is to be construed in its ordinary sense of an affair or thing: Melbourne Home of Ford Pty Ltd v Trade Practices Commission (1979) 36 FLR 450, at 474, per Franki and Northrop JJ; SA Brewing v Baxt, at 369. It refers to a body of facts which constitutes or may constitute a contravention of the TP Act. Whether or not the relevant body of facts constitutes a contravention is a matter of law and does not turn on the perception or knowledge of the ACCC or its officers: WA Pines v Bannerman, at 179. (v) When s 155(1) speaks of a matter which may constitute a contravention, it refers to a body of facts not fully known and which may, when fully known, reveal themselves as constituting a contravention: WA Pines v Bannerman, at 179. The words 'may constitute' enable a court to judge from the material in the notice whether, if other facts which may or may not have occurred come to light, the whole body of facts would constitute a contravention: SA Brewing v Baxt, at 370. It is not necessary for the court to determine whether a contravention has occurred; but equally it will not 'idly speculate' or 'draw on improbable circumstances' to uphold a Notice: SA Brewing v Baxt, at 370. An alternative formulation is that the court can take account of facts which may 'reasonably be suspected' to have occurred: WA Pines v Bannerman, at 179. (vi) Where the matter referred to in the notice, after allowing for undiscovered facts, is incapable of amounting to a contravention, the issue of the notice is not a valid exercise of the power conferred by s 155(1): SA Brewing v Baxt, at 371-372. (vii) In view of the principle that a court should not adopt an 'over-technical or hypercritical approach' to the construction of a notice, there is no requirement that the notice 'plead' all the facts necessary to constitute a contravention or possible contravention of the TP Act: SA Brewing v Baxt, at 370. (viii) Information which tends to negative a suspected contravention or liability to conviction or which tends to exculpate a person suspected to be a party to a contravention, is within the ambit of s 155(1). It follows that an inquiry under s 155 may relate to a defence or possible defence available to the suspected person: WA Pines v Bannerman, at 180.

Are the Matters Identified in the Notice Capable of Constituting a Contravention of s 52 of the TP Act? 50 Mr Rares put s 65A(1) of the TP Act at the forefront of his submissions. He did so because of the ACCC's concession that the two Today Tonight programs and the information on the website were 'prescribed publications' by a 'prescribed information provider'. By reason of that concession, so Mr Rares submitted, Seven Network enjoyed a complete exemption from s 52 in respect of the publications, unless one of the express exceptions to s 65A(1) could be shown to apply. In essence, Mr Rares argued that the elements of a contravention of s 52 of the TP Act were not complete unless and until the ACCC could show that one of the exceptions to s 65A(1), such as that for the publication of an advertisement (s 65A(1)(b)), applied. 51 In our view, however, the correct starting point is to determine whether the matters identified in the Notice, independently of the operation of s 65A(1) of the TP Act, are incapable, after allowing for undiscovered facts, of constituting conduct by Seven Network that contravenes s 52 of the TP Act: SA Brewing v Baxt, at 371-372. If the answer is in the affirmative (that is, the matters are not capable of constituting contravening conduct), there is no occasion to consider whether Seven Network's conduct is taken out of the reach of s 52 by the operation of s 65A(1). If, however, the matters are capable of constituting contravening conduct, it becomes necessary to consider whether s 65A(1) protects Seven Network by making s 52 inapplicable to its conduct. Given the concession that Seven Network is a prescribed information provider, that question involves determining whether the matters identified in the Notice, allowing for undiscovered facts, are capable of attracting one or more of the exceptions to s 65A(1). If so, Seven Network's conduct, as a matter of law, is capable of constituting conduct contravening s 52 of the TP Act. 52 As noted in [27(v)] above, two Full Courts have formulated what might seem to be somewhat different tests for determining whether the matters identified in a notice 'may constitute' a contravention of the TP Act. The differences are, however, more apparent than real. The judgment of Fisher and French JJ in SA Brewing v Baxt rules out engaging in idle speculation or drawing on improbable circumstances in deciding that question. Brennan J in WA Pines v Bannerman said that the question is to be resolved by reference to facts that might 'reasonably be suspected' to have existed. In George v Rockett (at 115) the High Court adopted Lord Devlin's observation in Hussien v Chong Fook Kam [1970] AC 942, at 948, that suspicion: 'in its ordinary meaning is a state of conjecture or surmise where proof is lacking: "I suspect but I cannot prove".'

'[t]he facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground belief, yet some factual basis for the suspicion must be shown.' Brennan J's test would rule out idle speculation or drawing on improbable circumstances. Equally, the comments by Fisher and French JJ in SA Brewing v Baxt implicitly require some factual basis for the suspicion but falling short of material sufficient to ground a positive belief that a contravention has occurred. 53 We recognise that care must be taken not to substitute a judicial formulation for the language used by Parliament. Ultimately the question is whether the matter identified in the Notice 'may constitute' a contravention of the TP Act. Bearing that in mind there is, in our view, no significant difference between the formulations in SA Brewing v Baxt and WA Pines v Bannerman. 54 As Moore and Mansfield JJ noted in Cassidy v Saatchi & Saatchi Australia Pty Ltd [2004] ATPR 41-980, at [31], there can be more than one publisher of misleading information. Thus it has been held that both an advertiser and the publisher of a newspaper in which an advertisement appears can contravene s 52 of the TP Act: see for example, Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd (1983) 66 FLR 453; Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd (1985) 58 ALR 549, at 586, per Toohey J. Indeed, it was this construction of s 52 of the TP Act that Parliament sought to address by enacting s 65A: see Gianni Versace SpA v Monte (2002) 119 FCR 349, at 383 [121], per Tamberlin J. 55 The application of the TP Act to television advertisements is illustrated by the decision in Universal Telecasters (Qld) Ltd v Guthrie (1978) 18 ALR 531, which predated the enactment of s 65A(1) of the TP Act. A Full Court of this Court held that a television station 'makes a false or misleading representation' within the meaning of s 53(a) of the TP Act if it publishes a misleading advertisement. 56 Section 52 of the TP Act, unlike s 53(a), does not use the word 'makes'. Nonetheless, it is at least arguable, subject to the operation of s 65A(1), that a television station broadcasting misleading statements in the course of a program which promotes a particular product will be taken to have engaged in misleading or deceptive conduct unless it purports to do no more than pass on information supplied by the promoters of the product and the context makes it apparent that the station is not the source of the information: cf Yorke v Lucas (1985) 158 CLR 661, at 666, per Mason ACJ, Wilson, Deane and Dawson JJ. Be that as it may, it is clear enough that the television station will be taken to have engaged in misleading or deceptive conduct if it is likely that the 'ordinary' or 'reasonable' members of the class of viewers would understand the representations made on the program as having the endorsement or approval of the television station: see Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45, at 86-87, per curiam; cf Cassidy v Saatchi, at [28]. 57 The first of the Today Tonight programs included a number of statements by the promoters of the WWW Program that plainly could be construed as making the three representations identified in the Notice (see [12] above). The transcript indicates that the compere and the reporter made a number of comments that are capable of being construed as endorsements of the promoters' representations. They also made statements capable of being construed as recommending the WWW Program to relatively unsophisticated investors as a means by which they can become millionaires through investments in property. The comments by the compere and the reporter include the following: 'Compere: Depna Bohold and Sandy Foster are self-proclaimed wildly wealthy women on a mission to make other women filthy rich too. … Reporter: Through shrewd investment in real estate the pair have become millionaires, their secrets to be revealed in a mentoring program called 'Wildly Wealthy Women'. … Reporter: Sandy, a former surf wear designer is now a prosperity coach teaching women how to think like millionaires. In eight months she's bought more than $1 million worth of property with no money whatsoever. … Reporter: Depna is an accountant turned property guru. … Reporter: She now owns more than 60 properties all around Australia. … Reporter: The knowledgeable pair are now on the hunt for hundreds of aspiring property millionaires to be part of their Wildly Wealthy Women mentoring program. Only the motivated need apply. … Reporter: The nine month program costs nearly $3000. If that sounds a lot think again. They say they can turn anyone into a millionaire even those with no money. … Reporter: For your chance to learn how to be a property millionaire log on to wildlywealthywomen.com.'

58 The second program contains similar statements, including the following: 'Compere: The women you're about to meet have made millions of dollars, and now they want to share their money-making secrets They believe, with a bit of hard work and their knowledge, any of us can become a millionaire. …. Dympna Boholt: Isn't it great? Sandra Foster: Yes, it's fabulous. Reporter: From Thursday Island to Tasmania, the response has been overwhelming. More than 5,000 women who are not surprisingly desperate to make their first million in property. … Reporter: About 600 women have paid almost $3000 each to join the nine month Wildly Wealthy Women Mentoring Program. A lucky seven women have been chosen from thousands to get the program for free. … Reporter: There's no doubt property seminars have been given a bad name. Property spruiker, Henry Kaye the biggest offender, accused of causing ordinary Australians to lose millions. However, these wildly wealthy women say their program is the real deal. Dympna, an accountant, and Sandy, a prosperity coach, say they've created their own success and wealth from next to nothing and plan to teach other women to do the same.'

59 Mr Rares correctly pointed out that the material incorporated in the Notice must be capable of establishing that Seven Network made each of the three representations alleged in the Notice. He also correctly pointed out that neither the compere nor the reporter expressly said that participants in the mentoring program would become wealthy through investment in property and that they could do this even if they started with no money. Nonetheless, the statements made by the compere and the reporter are capable of being understood as endorsements of the promoters' representations and thus constituting representations by Seven Network itself. 60 It is quite true that each of the Today Tonight programs contained comments that might be construed as injecting a note of scepticism concerning the promoters' claims. For example, the first program concluded with this comment by the compere: 'Compere: Too good to be true? Well we'll be following the scheme's progress to let you know.'

The reporter in the second program concluded with this observation:

'Reporter: But can these women become property millionaires? Well, over the next 9 months, we'll be closely watching them to see if they actually become wildly wealthy women. We'll let you know how they go.'

61 It may be that at a hearing Seven Network could persuade a court that these disclaimers (if that is what they are) justify a finding that Seven Network itself did not make any of the representations identified in the Notice. But it cannot be said that the matters identified in the Notice (which include the transcripts of the programs), taking into account as yet undiscovered facts, are incapable of constituting contraventions by Seven Network of s 52 of the TP Act. As the primary Judge pointed out, video evidence of the programs might well add strength to the case that Seven Network itself engaged in misleading or deceptive conduct. Evidence might also be adduced from viewers indicating that they believed that Seven Network was endorsing the claims made by the promoters about the WWW Program. 62 The material on the Today Tonight website is similar in character and warrants the same conclusion. 63 It follows that Seven Network fails in its contention that the matters identified in the Notice are incapable, independently of s 65A(1), of constituting a contravention of s 52 of the TP Act.

The Exception to s 65A(1): Publication of an Advertisement 64 The next question, bearing in mind the ACCC's concession ([9] above), is whether the matters identified in the Notice, allowing for undiscovered facts, are capable (or not incapable) of attracting at least one of the exceptions to s 65A(1) of the TP Act. It is necessary only to consider the exception stated in s 65A(1)(b), namely that the Today Tonight programs and the material on the website constituted publication of an advertisement. 65 Mr Rares correctly pointed out the Notice does not expressly claim that the Today Tonight programs and the website constituted the publication of an advertisement. Nor is there any direct evidence that the promoters provided consideration to Seven Network or one of its subsidiaries to promote the WWW Program. Nonetheless, the three matters identified in the Notice, which include the transcripts of the Today Tonight programs and relevant extracts from material on the website, suggest that the hypothesis that the promoters paid money or provided other consideration to Seven Network in return for promotion of the WWW Program is by no means implausible. 66 As we have explained, the language used by the compere and the reporter in both of the Today Tonight programs is capable of being understood as an endorsement of the WWW Program and an encouragement to pay the fee required 'to learn how to be a property millionaire'. Seven Network's apparent willingness to endorse or recommend the WWW Program may or may not prove to have been the product of some commercial arrangement between it and the promoters. But at the investigative stage, the hypothesis cannot be described, to adapt the language of Fisher and French JJ in SA Brewing v Baxt, as idle speculation or drawing on improbable circumstances. The material available to the ACCC is not only consistent with the hypothesis, but suggestive of it. To put the matter another way, the material provides an adequate factual basis for a reasonable suspicion that the television programs and the material on the website constituted the publication of an advertisement for the WWW Program. This being so, it could reasonably be suspected that one of the exceptions to s 65A(1) of the TP Act applied to the Today Tonight programs and the material on the website. Accordingly, the primary Judge was correct to conclude that, notwithstanding s 65A(1) of the TP Act the matters identified in the Notice 'may constitute' a contravention of s 52 of the TP Act.

The Absence of any Reference to s 65A(1) in the Notice 67 In its most general form, Seven Network's submission that the Notice was invalid because it made no reference to s 65A(1) of the TP Act comes perilously close to requiring the ACCC to plead a case of contravention of s 52 in the Notice itself. SA Brewing v Baxt makes it clear that a notice under s 155(1) does not have to plead all the facts necessary to establish a contravention of the TP Act. Indeed, it is far from clear that if proceedings were instituted by the ACCC against Seven Network, the ACCC would be bound to plead in its statement of claim the material facts attracting one of the exceptions to s 65A(1). It would seem to be a matter for Seven Network, if it wished in such proceedings to rely on its status as a prescribed information provider, to plead facts in its defence attracting the protection afforded by s 65A(1). The ACCC would then presumably plead facts attracting one or more of the exceptions to s 65A(1) in its reply, although in practice it might perhaps choose to anticipate Seven Network's defence by pleading such facts in the statement of claim. 68 Be that as it may, s 155(1) of the TP Act does not require a notice issued under that section to incorporate a reference to every factual issue that may be in dispute in legal proceedings that ultimately might be brought in respect of the matters identified in the notice. A notice must fulfil the requirements set out in [27] above, but these requirements do not include the principles of pleading applicable to proceedings under the TP Act. Accordingly, Seven Network's submission that the absence of any express reference to s 65A(1) invalidates the notice must be rejected.

Does the Notice Disclose the Basis for Requiring the Information? 69 Seven Network's alternative submission is that the Notice, in the absence of any express reference to s 65A(1) of the TP Act, does not disclose the basis on which the ACCC is entitled to require Seven Network to furnish the information specified in the Schedule. 70 There is no dispute that the information sought in the Notice is stated with sufficient clarity. The information consists simply of the names and addresses of the executive producer and compere of each of the Today Tonight programs and the same details for the persons responsible for the content of the programs and of the website. Nor is there any dispute that the Chairperson could reasonably believe that Seven Network is capable of providing the information sought in the Notice. 71 The question is whether the Notice discloses the basis upon which the Chairperson could reasonably believe that the information sought is information 'relating' to the matters identified in the Notice. It has been said that '[t]here is no expression more general or far-reaching' than 'relating to' (Commissioners of Inland Revenue v Maple & Co (Paris) Ltd [1908] AC 22, at 26, per Lord Macnaghten), although the effect of the phrase must be determined by the statutory context and purpose: Oceanic Life Ltd v Chief Commissioner of Stamp Duties (1999) 168 ALR 211, at 224-225 [56], per Fitzgerald JA. In this case, it is necessary to bear in mind that s 155(1) of the TP Act confers a power for the purpose of enabling the ACCC to perform its functions. Equally, however, it is necessary to bear in mind that the question of whether the Notice discloses the necessary relatedness between the information and the matters is not to be approached in an over-technical or hypercritical way: Pyneboard v TPC, at 376. 72 In our view, it is clear enough (and would be clear to the recipients of the Notice) that the names and addresses of the persons responsible for the content of the Today Tonight programs, including the website, would assist the ACCC in its investigation of whether Seven Network contravened s 52 of the TP Act. The 'matters' identified in the Notice include, in each case, a claim that Seven Network (as well as the promoters) had no reasonable grounds for making the representations in the programs. As we have explained, there is a factual basis for the statements in the Notice that Seven Network itself made the representations and for the claim that the matters identified 'may constitute' contraventions by Seven Network of s 52 of the TP Act. At the very least, the persons responsible for the content of the programs, once they are identified, could reasonably be expected to assist the ACCC in determining whether or not Seven Network had reasonable grounds for making the representations. This line of inquiry is squarely within the ACCC's investigative functions. 73 The executive producer and compere of the Today Tonight programs might also reasonably be expected to assist the ACCC in determining whether there were reasonable grounds for making the representations. Both the executive producer and the compere presumably were involved in discussions concerning the form and content of the programs and thus would be likely to have information as to what was (or was not) disclosed to Seven Network concerning the WWW Program. Such information could reasonably be expected to be material to the ACCC's investigation. 74 In addition, the persons referred to in the Schedule to the Notice could reasonably be expected to have information concerning the existence (or otherwise) of a commercial arrangement between Seven Network and the promoters to publicise the WWW Program. If the ACCC were able to pursue this line of investigation with the relevant persons, it would be in a better position to ascertain whether the Today Tonight programs could be regarded, for example, as the publication of an advertisement within the meaning of s 65A(1)(b) of the TP Act and thus outside the protection of s 65A. 75 In determining whether a notice sufficiently discloses the relationship between the information sought and the 'matters' identified in the notice, it is permissible in our view to take account of the identity of the recipient and the knowledge available to that person. What may be required of a notice directed to a member of the public might be different from what must be included in a notice directed to a large commercial organisation whose officers can be expected to be familiar with the regulatory framework affecting their organisation. It could hardly come as a surprise to Seven Network, as the recipient of the Notice, that an element in any investigation by the ACCC of misleading or deceptive conduct by Seven Network itself in the course of television programs would be likely to involve a consideration of the possible applicability of s 65A(1) of the TP Act. In view of the content of the Today Tonight programs, the transcripts of which were annexed to the Notice, it would also come as no surprise to Seven Network that one line of inquiry the ACCC would be likely to pursue is to determine whether there was a commercial arrangement between Seven Network and the promoters, such as to attract s 65A(1)(b) or, possibly, s 65A(1)(a)(vi) of the TP Act. Each of the persons whose details are sought from Seven Network could be expected to provide the ACCC with information bearing on that question. 76 It follows that the Notice sufficiently disclosed the relationship between the information sought and the identified 'matters'. This ground of challenge to the validity of the Notice therefore must be rejected.

The Use of s 155 to Identify Possible Witnesses 77 Seven Network's final submission is that it is not an appropriate use of s 155(1) of the TP Act to identify possible witnesses. Mr Rares contended that the Notice, in effect, sought to do this, since it merely required Seven Network to provide the names and the addresses of certain persons involved in publication of the Today Tonight programs and of the material on the website. 78 Because the submission is based on the judgment of Bowen CJ in Riley McKay v Bannerman, it is important to consider the circumstances of that case. The Trade Practices Commission had issued a notice, purportedly pursuant to s 155 of the TP Act, requiring a company to answer 61 numbered questions, many of which had sub-questions. The company had a mail order business and had published advertisements for several of its products. The company challenged question 40(c) in the notice which asked, in relation to a particular advertised product: 'whether the company has received any communication from a person to whom the company supplied it in which the person expressed an attitude as to its standard, quality, performance, uses, benefits or suitability for any purpose'. 79 Bowen CJ observed (at 568) that if the question had been confined to communications received by the company before publication of the first of two advertisements, or between the date of the first and second advertisements, the information sought might have been relevant to a possible defence under s 85(1) of the TP Act (which allows a defence of reasonable mistake in certain circumstances). But in his Honour's view, insofar as the question went further, it did not have 'sufficient relevance' to the matters identified in the notice. It was possible that details of communications received by the company after it had published all the advertisements might have led the Commission to particular individuals 'who might [have been] possible witnesses as to the quality of the goods'. Bowen CJ did not think that seeking information of this kind was an appropriate use of s 155(1) of the TP Act. 80 The circumstances of the present case are different from Riley McKay v Bannerman. The information sought in the present case concerns the names and addresses of particular persons who played specified roles in preparing and publishing the contents of the Today Tonight programs and the website. The Chairperson of the ACCC, for reasons we have given, could reasonably believe that obtaining the information sought by the Notice is an important first step in investigating whether the matters identified in the Notice may contravene the TP Act. In Riley McKay v Bannerman, Bowen CJ considered that the only relevance of the information sought was that it might lead to possible witnesses who could give evidence as to the quality of the goods. In this case, it is reasonable to expect that, once the ACCC has the names and addresses of the persons who prepared and published the relevant material, it could obtain from them information bearing directly on the question of whether the matters identified in the Notice constituted a contravention of the TP Act. 81 The language of s 155(1) of the TP Act is wide enough to authorise the ACCC to seek the names and addresses of persons who have played a particular part in preparing or publishing material that is alleged, on reasonable grounds, to be misleading and deceptive and therefore in contravention of s 52 of the TP Act. If the ACCC has reason to believe that identifying such persons would enable it to investigate whether the particular matters in the Notice constitute contraventions of the TP Act, their names and addresses are capable of being regarded as 'information … relating to a matter that … may constitute … a contravention of [the TP Act]'. 82 The circumstances of this case have some analogies to those addressed by the High Court in McGuinness v Attorney-General of Victoria (1940) 63 CLR 73. In that case, a Royal Commissioner had been appointed to inquire into allegations of bribery of members of the Victorian Parliament. The editor of the Truth newspaper had published articles suggesting that certain persons were collecting funds for the purpose of bribing members of the Parliament. The Royal Commissioner insisted that the editor answer questions which would have required him to divulge his sources for the information contained in the article. The question was upheld as 'material to the subject matter of inquiry'. Latham CJ (at 86) pointed out that the Commission was conducting an inquisition, as distinct from determining an issue between parties. He said that: '[i]n the course of such an inquiry it would or at least might be a valuable step forward if the identity of the persons giving information to the editor of the newspaper could be discovered so that they could be summoned for the purpose of giving evidence on oath as to their knowledge, or as to the source of their information if they had no direct personal knowledge of the matters in question'.

Similarly, Dixon J observed (at 105) that the 'tracing of informants and the discovery of sources of knowledge fell … within the scope of the inquiry'.

83 In our view, the information sought by the ACCC can be seen to relate to the matters identified in the Notice. It is not necessary to decide whether a notice that merely sought the names and addresses of possible witnesses would fall outside the scope of s 155(1) of the TP Act. Even if that is the case, the information sought in the present case goes beyond merely seeking to identify the names and addresses of potential witnesses. Seven Network's final submission therefore fails.

CONCLUSION 84 The appeal must be dismissed. Seven Network must pay the ACCC's costs. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Sackville and Emmett.

Counsel for the Appellant: SD Rares SC with JR Clarke