South Sydney District Rugby League Football Club Ltd v News Limited

Introduction 140 South Sydney District Rugby League Football Club Ltd ("Souths") fielded a team in the premier rugby league competition in 1999. The next year it did not. There was no Souths team in 2000 even though there was a long history and strong tradition of a Souths team, supported by the local community, playing in the competition since the early years of last century. The club's position in the sport of rugby league appears to have been pre-eminent. Souths won the first competition in 1908 and by 1997 it had won more premierships than any other club in the history of top grade rugby league and had produced more international players than any other club. 141 These proceedings concern the effect on Souths of arrangements between competing interests which followed what has been described as an "assault upon the League" by News Ltd ("News"): see News Limited v Australian Rugby Football League Limited (1996) 58 FCR 447 at 471 per Burchett J in which the history is discussed as it is also in the judgment of the Full Court in News Limited v Australian Rugby Football League Limited (1996) 64 FCR 410 ("the 1996 appeal decision"). Souths sought to restrain the application of one aspect of those arrangements which was that in the year 2000, fourteen teams only would play in the competition. 142 This is an appeal against the judgment of the learned primary judge refusing Souths the relief it sought and dismissing its application. In his reasons: [2000] FCA 1541 and (2000) 177 ALR 611, his Honour dealt comprehensively with a large number of issues raised by the parties. Souths has isolated a limited number of issues determined by his Honour and has raised them again in this appeal. So too have the respondents, News, National Rugby League Investments Pty Ltd ("NRLI"), Australian Rugby Football League Limited ("ARL"), National Rugby League Limited ("NRL") and fifteen companies who field teams in the competition which, by notices of contention, canvassed his Honour's conclusions about a limited number of additional issues. Background in outline 143 In his reasons, the learned primary judge set out in detail the general background, events leading to the making of the arrangements central to this appeal and the implementation of those arrangements. No challenge has been made in this appeal to any finding of primary fact by his Honour (though some of the inferences which can be drawn from them are in issue). Moreover some of the more pertinent facts have been set out again in a more summary way in the reasons for judgment of Heerey J in this appeal, which I have had the benefit of reading in a draft form. Accordingly it is unnecessary to repeat, in detail, what the primary judge found or refer to the evidence other than when it is necessary to do so. Legislation 144 Central to this appeal are two sections of the Trade Practices Act 1974 (Cth) ("the Act") concerning exclusionary provisions. Section 45 prohibits conduct of a specified type and subs (2) provides: "(2) A corporation shall not: (a) make a contract or arrangement, or arrive at an understanding, if: (i) the proposed contract, arrangement or understanding contains an exclusionary provision; or (ii) a provision of the proposed contract, arrangement or understanding has the purpose, or would have or be likely to have the effect, of substantially lessening competition; or (b) give effect to a provision of a contract, arrangement or understanding, whether the contract or arrangement was made, or the understanding was arrived at, before or after the commencement of this section, if that provision: (i) is an exclusionary provision; or (ii) has the purpose, or has or is likely to have the effect, of substantially lessening competition." It can be seen that a corporation cannot agree or give effect to a provision of a contract, arrangement or understanding which is an exclusionary provision. What is an exclusionary provision is described in s 4D which provides: "(1) A provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding, shall be taken to be an exclusionary provision for the purposes of this Act if: (a) the contract or arrangement was made, or the understanding was arrived at, or the proposed contract or arrangement is to be made, or the proposed understanding is to be arrived at, between persons any 2 or more of whom are competitive with each other; and (b) the provision has the purpose of preventing, restricting or limiting: (i) the supply of goods or services to, or the acquisition of goods or services from, particular persons or classes of persons; or (ii) the supply of goods or services to, or the acquisition of goods or services from, particular persons or classes of persons in particular circumstances or on particular conditions; by all or any of the parties to the contract, arrangement or understanding or of the proposed parties to the proposed contract, arrangement or understanding or, if a party or proposed party is a body corporate, by a body corporate that is related to the body corporate.' (2) A person shall be deemed to be competitive with another person for the purposes of subsection (1) if, and only if, the first-mentioned person or a body corporate that is related to that person is, or is likely to be, or, but for the provision of any contract, arrangement or understanding or of any proposed contract, arrangement or understanding, would be, or would be likely to be, in competition with the other person, or with a body corporate that is related to the other person, in relation to the supply or acquisition of all or any of the goods or services to which the relevant provision of the contract, arrangement or understanding or of the proposed contract, arrangement or understanding relates." In this appeal the following elements of s 4D assume importance. Firstly the section, like s 45, operates on a provision of a contract, arrangement or understanding and not, in terms, on the entire contract, arrangement or understanding. Secondly the provision must have a proscribed purpose. It is settled law and was common ground that the relevant purpose is of the parties to the contract, arrangement or understanding and it is their subjective purpose: see ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 1) (1990) 27 FCR 460 ("Pont Data"). Thirdly the purpose must be to prevent, restrict or limit one or both of two things. They are the supply of goods or services or the acquisition of goods or services. Fourthly the supply must be to or the acquisition must be from, particular persons or particular classes of persons (it was common ground and appears to be correct that the adjective "particular" qualifies both "persons" and "classes"). In this judgment I will continue to use the word "persons" used in the section even if the word "people" were, in context, more apt. A related element in s 4D also found in s 45 is that the provision is being given effect to by a corporation. That section does not, in terms, require that the corporation giving effect to the provision is itself a party to the contract, arrangement or understanding containing the provision. 145 Mention should be made of two further provisions. The expression "give effect to" is defined in s 4 of the Act. It is an expression which: "includes do an act or thing in pursuance of or in accordance with or enforce or purport to enforce." 146 The other is s 4F(1) which gives meaning to the word "purpose" and provides, for present purposes, that: "(a) a provision of a contract, arrangement or understanding … shall be deemed to have had, or to have, a particular purpose if: (i) the provision was included in the contract, arrangement or understanding … for that purpose or for purposes that included or include that purpose; and (ii) that purpose was or is a substantial purpose." It is against this legislative background that this appeal is to be determined. Reasons of the primary judge 147 My conclusions in this appeal can be explained more clearly if reference is made to the reasons of the primary judge as various issues raised in the appeal are considered. It is convenient to set out those parts of his Honour's reasons at that point in these reasons. I will use the abbreviations and acronyms used by his Honour. Issues in the appeal raised by Souths 148 Central to Souths case both at first instance and on appeal is what is described as the fourteen team term. It was said to be the provision which was an exclusionary provision of the proscribed type. The way Souths described the provision in the pleadings was: "[i]n the 2000 season and thereafter the number of teams to participate in the NRL competition would be restricted to 14, with no more than eight and no fewer than six teams from Sydney." The matters raised by Souths in the appeal were whether: (i) the primary judge erroneously focussed on the purpose of the 19 December Understanding and ascertained what its purpose was and whether, in approaching the matter this way, his Honour failed to focus on the relevant legal question, namely what was the purpose of the fourteen team term. (ii) his Honour, in considering whether the fourteen team term was an exclusionary provision, was unduly influenced by questions such as whether the 19 December Understanding had a commercially legitimate objective and the impugned provision was a means of achieving it and whether his Honour failed to recognise that it was unnecessary for an exclusionary provision to have an anti-competitive effect or otherwise have an illegal purpose. (iii) in considering whether the fourteen team term was an exclusionary provision, his Honour was erroneously influenced by whether or not the term specifically targeted a club or clubs or discriminated against a club or clubs. (iv) his Honour's analysis of what constituted a particular class also manifest error, because it was unnecessary for the membership of the class to be identified at the time the exclusionary provision was entered into by News and ARL. (v) his Honour misconstrued s 4D(1)(b) when considering the question of whether there might be a limiting or restricting of the supply by News and ARL of their services as competition organisers to particular persons (the clubs that participated in the rival 1997 competitions), or a limiting or restricting of the acquisition of teams' services from those clubs, and whether his Honour erred in treating that provision as relating only to the supply or acquisition of partial services and placed a gloss on the provision. I will adopt the approach of the primary judge and focus on the 19 December Understanding. The position revealed by the later agreements does not appear to me to result in any difference in analysis or conclusion. Resolution of the issues raised by Souths (i) Purpose 149 In his reasons the primary judge concluded that the fourteen team term was not an exclusionary provision of the type Souths alleged. His Honour described the purpose alleged by Souths as it related to the prevention of supply and acquisition in the following passage (at [263]): "[263] Both ARL and News had the purpose that from 2000, the competition would be reduced to fourteen teams with no more than eight teams and no fewer than six teams from Sydney…… Notwithstanding that News and ARL had the purpose of encouraging mergers or joint ventures to avoid exclusion of clubs from the services, it was one of their purposes that, if the requisite reduction in numbers could not be achieved by joint ventures and mergers, then one or more of the clubs that had participated in the 1997 season in either competition would be denied entry in 2000. That purpose was a substantial purpose (see s 4F of the TP Act) even if it was a subsidiary and immediate purpose and not the dominant and ultimate purpose for the inclusion of the fourteen team term: Jewel Food Stores Pty Ltd v Amalgamated Milk Vendors Association Inc (1989) 24 FCR 127 at 134-135." 150 In relation to the question whether the purpose of the provision was, relevantly, to prevent acquisition and supply, the primary judge concluded that the provision did not have that purpose. His Honour's reasons for reaching this conclusion appear, in part, in the following passage (at [269] and [270]): "[269] A clear and intended effect of the fourteen team term was that the NRL partnership would not provide its competition organising services to, or acquire team services from, a greater number of teams than the number so fixed. This was a fundamental element of the peace deal. A foreseeable and, for ARL and News, a foreseen consequence of the term was that if more than the stipulated number sought participation in the NRL competition, the excess over the stipulated number (howsoever determined) would be denied the provision of the partnership's competition organising services and would not have its (their) team services acquired by the partnership. There can be no controversy about both the effect and the consequence I have described. The real matter in issue is whether the term was included in the 19 December Understanding and its successor documents for the purpose, or for purposes that included the purpose, alleged by Souths. To resolve this it is necessary at the outset to place the 19 December Understanding and the fourteen team term within it, in their respective contexts. [270] The objective the 19 December Understanding was working towards was to bring together in one competition the separate competitions of ARL/NSWRL and Super League, the latter at News' instigation having broken away from the former. The parties to the Understanding clearly appreciated and, for somewhat varying reasons, accepted the need for a united competition. As the evidence of Mr Macourt, Mr Frykberg and Mr Whittaker indicates, as also did contemporary documentary evidence, a variety of factors informed that need. For present purposes I need mention only three and in general terms. First, positively, there was the perceived need to establish a financially viable and sustainable competition. Secondly, negatively, there was the wish to avert continuing damage to the game. And thirdly, there was the need both to satisfy and to respond to the pressures and demands of the media companies on whose financial support both the several and the proposed competitions had relied or would rely for their survival." 151 Several comments can be made about this passage. The first is that the primary judge spoke in the first sentence of providing services to or acquiring services from "teams". A similar formulation was used by his Honour elsewhere and apparently reflected a formulation used by Souths in its submissions. While the respondents in the appeal did not criticise the use of the formulation in the reasons (nor, obviously enough, did Souths) the respondents emphasised in the appeal that relevant services were being provided to or acquired from clubs and not teams. This, in my opinion, is correct and is of some significance as I explain later. Secondly, his Honour focussed in the first paragraph on the purpose of the impugned provision, the fourteen team term, but went on in the second paragraph to consider the overall objective of the 19 December Understanding. His Honour then discussed in more detail how the negotiations were directed to creating a new and quite distinctive competition and a national competition which was viable. It was noted that no team had a right to participate in the new competition's 1998 season and, as matters developed, would undergo a selection process to participate in the 2000 competition. His Honour went on to consider the question of purpose (at [274]): "[274] Against this background, the purpose or purposes for which the fourteen team term was included in the 19 December Understanding become(s) more apparent. The primary purpose of the Understanding itself was to constitute a partnership to own and conduct the proposed NRL competition. I need not further consider the reasons that led to the proposed formation of the partnership. I would note, though, that the proposed NRL competition structure served an important role in defining the scope of the partnership's business both in providing competition organising services and in acquiring team services. While the NRL competition has variously been described as a "merged" or "unified" competition, it was in my view a new competition that supplanted the two competitions it was designed to replace." 152 The preceding passage involves a discussion of the overall purpose of the 19 December Undertaking. His Honour then noted that the fourteen team term was one of the defining characteristics of the new competition and his Honour went on to deal in more detail with the question of purpose, as it related to prevention, in a lengthy passage which should be set out in full (at [276] to [287]): "[276] I have not repeated the individual reasons given by Mr Macourt, Mr Frykberg or Mr Whittaker for their agreeing to the fourteen team term. They are consistent with what I have said above. Equally I have not referred to the authorisations etc given by News and ARL/NSWRL for such light as they throw on what were their respective purposes in the matter. I am, however, satisfied that the fourteen team term (including the 8-6/6-8 split) was included in the 19 December Understanding for the purpose of achieving the objectives to which I have referred. [277] Can it be said, though, that this was the only (hence only substantial) purpose for the inclusion of the term? In his judgment in the interlocutory proceeding when responding to the submission that the term was not included for the purpose of excluding anyone but that exclusion was an incidental and unwished for outcome, Hely J said ((1999) 169 ALR at 132): 'I do not agree. One of the motivations behind the inclusion of the 14 team term in the arrangements was to restrict the supply and acquisition of the services to which the term relates to 14 clubs, in order to establish a viable and sustainable competition. This is not to confuse purpose with effect. It is merely an acknowledgment of the reality of the situation. The purpose of the 14 team term was not merely to achieve the desired "end", but to do so by particular means. For this reason it cannot be said that the only purpose of the provision is the establishment of a viable or sustainable competition.' [278] For my own part I cannot, with respect, so readily accept this conclusion, or at least its implication. My reasons for this reticence relate to the quite particular character of the purpose required to be shown to attract s 4D and to that purpose's targeting of particular persons or classes of person. Though these two matters - the required purpose and the targeted class - are parts of a composite whole, I will for convenience in exposition consider each separately. [279] The fourteen team term limited, and was intended to limit, the number of teams to which the partnership would provide its services and from which it would acquire services. It equally had the foreseeable, and foreseen, consequence to which I earlier referred. But does that intended effect with its foreseeable consequence necessitate the conclusion that a purpose for including the provision was to prevent the supply to, or acquisition of services, to teams in excess of the stipulated fourteen? [280] Unlike Hely J, I am not satisfied that this question can be answered by differentiating ends from means. ARL and News proposed to create a new business running a new competition having particular characteristics. One characteristic was that it would have a maximum number of teams. For present purposes it would not matter what that number was - twelve, fourteen, sixteen, eighteen. What is important is that the competition so designed embodied a limit to the number of teams to or from which the partnership would provide or acquire services. Given the objectives it was intending to pursue in creating the competition, this number was selected as Mr Frykberg put it 'as the best number of teams'. [281] The competition was to draw its participants from the pool of teams that had participated in the ARL and Super League competitions. While those teams would have to release their respective competition organisers from their commitments to them if the new competition was to become a reality, the clubs in the pool (apart from being offered the opportunity to participate in the 1998 and later the 1999 NRL competitions), were to be offered at least the opportunity to participate in the selection process for participation in the 2000 competition. If a particular club was successful in that, the partnership would provide services to it and acquire services from it. If it was unsuccessful, no services would be made available to it or be acquired from. But this, in my view, would not necessarily mean that a purpose of the relevant competition size provision was to prevent the supply etc to or from that club. That may or may not have been the purpose for including the particular size provision. One can envisage a size provision with its proposed ancillary criteria being designed with the substantial purpose in mind, not simply of limiting the size of the competition for reasons that are considered to be in the interests of the game and its stakeholders, but of specifically targeting a club or clubs that is or are anticipated to be applicants for selection. Such is far from the present case. A selection process having more applicants than positions necessarily results in there being winners and losers. What for s 4D purposes is important for those who lose is the manner of their losing. [282] There is a significant difference between being merely an unsuccessful contender for selection in a process not designed to preordain that particular outcome and being a target for exclusion in a selection process designed to that end. The latter, but not the former, if otherwise the product of a s 4D understanding, is capable of being found to be an exclusionary provision. [283] In the present case the evidence concerning the adoption of the fourteen team term is bereft of any indication that its purpose was to prevent the supply of services to, or acquisition of services from, any person or class of persons. The term had an intended effect and foreseen consequences. But these do not in my view require it to be found that a purpose of the term's inclusion in the 19 December Understanding, etc was a purpose proscribed by s 4D(1). [284] I accept the evidence of Mr Whittaker that he believed the fourteen teams for 2000 could be, and of Mr Frykberg that they would be, achieved without resort to exclusion. And I consider the early and continuing significance they attributed to the formation of mergers and joint ventures as being consistent with the absence of a proscribed purpose. The significance so attributed to mergers, etc, evidenced a form of recognition of both the wish and the need to maintain some level of participation of the established clubs in a competition not designed to accommodate them all individually. [285] Further, while it may be said that the fourteen team term was only a means to achieving the objectives I have mentioned, the evidence (i) does establish that that term was fundamental to the 19 December Understanding and (ii) does not establish that there was another means available not involving the fourteen team term (or for that matter any maximum size stipulation) that would have been likely to secure either the merger itself or the objectives sought to be achieved in the competition structure. In these circumstances I am unable to conclude that a variety of means was available to the parties such that the adoption of the fourteen team term was merely a means to an end and as such had another purpose as well as that of securing the objectives sought. [286] For these reasons I conclude that the term does not fall within s 4D(1) in that it was not included in the 19 December Understanding for a purpose that included the prevention of the supply of competition organising services or of the acquisition of team services. [287] Even if I am incorrect in this conclusion and that, as Hely J suggested as a possibility, the term embodied as one of its purposes preventing the supply or acquisition of services to more than fourteen teams, I am satisfied that Souths' claim must fail for a related reason. On the evidence before me, the person or class said to be prevented from supplying or acquiring the relevant services is not a 'particular class of persons' for the purposes of s 4D(1)." (Emphasis added) 153 It can be seen that in the fourth paragraph ([279]) in the preceding extract, his Honour again spoke of "teams" when it would have been more appropriate, in my respectful opinion, to speak of clubs. His Honour did so again in [287]. I do not intend to criticise his Honour's choice of language. However the emphasised sentence in the fourth paragraph contains the critical question concerning purpose at least as it related to prevention. In my opinion, there may be a material difference in the result if the question is put slightly differently as I consider it should. The significance of whether one considers "clubs" rather than "teams" when evaluating or determining purpose is more apparent when the question of restricting or limiting supply or acquisition is considered. 154 Central to Souths' challenge to the primary judge's conclusions concerning purpose was that s 4D(1)(b) raised for consideration the purpose of the provision said to be an exclusionary provision and not, at least as a central consideration, the purpose of the contract, arrangement or understanding of which the provision may be but a part. It was submitted that what his Honour did was ascertain the purpose or objectives of the 19 December Understanding and from there move to consider the purpose of the fourteen team term. In so doing his Honour erred and was influenced by the commercial legitimacy of the 19 December Understanding overall having regard to the objectives sought to be achieved by the Understanding. His Honour also erred, it was submitted, by considering whether the impugned provision specifically targeted a particular club or clubs or discriminated against a particular club or clubs. 155 The immediate difficulty, for my part, in dealing with these submissions is that his Honour's detailed consideration of the question of purpose was in the context of the contention that the fourteen team term had a purpose of preventing the supply of organising services to or the acquisition of team services from a particular class of persons. His Honour reached a conclusion about that matter at [286] quoted above. That conclusion can be contrasted with the observations of Hely J in the interlocutory proceedings (which the primary judge set out in [277] quoted above but indicated he did not unconditionally accept) which concerned motivation and possible purpose, but related, importantly, to restricting supply and acquisition and not prevention. Yet the substantial issue raised by Souths in this appeal, in my opinion, concerns the approach of the primary judge to the question of restriction and limitation of supply and acquisition and not prevention. 156 As will be apparent from a passage from his Honour's reasons set out later, the primary judge imported, without elaboration, his conclusion about purpose relating to prevention, into his consideration of whether the fourteen team term had a purpose of restricting or limiting the supply or acquisition of services in relation to particular persons. As I discuss shortly, I consider that his Honour took an unduly narrow view of s 4D(1)(b) as it might apply to a provision said to have a purpose of restricting or limiting supply or acquisition though not on precisely the same basis advanced by Souths. 157 Accordingly, I propose to focus on the question of whether the primary judge's approach and conclusion on the question of purpose reveals error as it might apply to the question of restricting or limiting supply and acquisition of services. 158 The finding made by his Honour in [284] quoted above was, in substance, that the individuals who entered the 19 December Understanding on behalf of ARL and News intended, by the fourteen team term, to require at least some of the clubs who participated in the rival 1997 competitions to merge or enter joint ventures if they were to remain in the competition. By these means those clubs would continue to field teams. His Honour accepted (a finding not challenged) that those individuals believed there could or would be no club excluded. That is, all clubs would or might be accommodated at least in the sense that some would field a team but in conjunction or collaboration with other clubs. It can readily be inferred, and it is the preferable inference, that this was a substantial purpose of the fourteen team term. That is, a purpose of the fourteen team term, which was a substantial purpose, was to bring about a situation where some of the clubs participating in the rival 1997 competitions would not field their team in the year 2000 as they had done in 1997 but would do so in conjunction or collaboration with other clubs. However if the primary findings of his Honour reveal this purpose, the fourteen team term attracts the operation of s 4D only if, as I shortly discuss, it is directed to restricting or limiting the acquisition and supply of services as pleaded. The fact that the fourteen team term was included in the 19 December Understanding to achieve particular commercial objectives which were, in a sense, unexceptionable does not lead to some other characterization of the purpose of the fourteen team term. 159 In addition, the fact (which I accept) that the fourteen team term was intended to operate on any other clubs entering the new competition after December 1997 would indicate that the term had purposes in addition to the purpose just described. However the existence of that additional purpose does not preclude the fourteen team term having a substantial purpose operating in December 1997 on the clubs who had earlier that year participated in the rival competitions. 160 It is convenient to move straight to the question of the restriction or limitation of supply or acquisition. (ii) restricting or limiting supply or acquisition 161 Part of the case advanced by Souths was that the fourteen team term had a proscribed purpose of restricting or limiting the supply of organising services or restricting or limiting the acquisition of team services. This was dealt with comparatively briefly by his Honour in the following passage (at [294] to [299]): "[294] As pleaded the particular persons said to be the objects of the proscribed purposes were the clubs that had participated in the ARL and Super League competitions prior to December 1997 and that had not withdrawn from those competitions before that date. [295] The finding I have made above as to the purpose of the parties in including the fourteen team term in the 19 December Understanding is fatal to this claim as well. Nonetheless there is a number of matters I should address in relation to it specifically. [296] Souths' contention is that the effect and purpose of the fourteen team term was to 'limitor restrictthe supply' by ARL and News of their services as competition organisers to 'particular persons', being the twenty clubs that participated in the 1997 competitions, by their stipulating that such services would not be supplied to more than fourteen teams from 2000. Conversely, the effect and purpose of the provision was to 'restrict' or "limit the acquisition" of teams' services from 'those particular persons' by being willing to acquire the services of only fourteen teams. [297] In the interlocutory proceedings Hely J rejected the argument in the following way ((1999) 169 ALR at 131): 'The case sought to be made by ASC paras 20(a) and 21(a) is misconceived. It alleges a purpose of restricting or limiting the supply of competition organising services to, and the acquisition of team services from, clubs which had participated in the 1997 competitions and who had not withdrawn from those competitions prior to 19 December 1997. But there was to be no restriction or limitation (in the sense of a partial supply or acquisition) of services to the 1997 clubs. Some would be fully supplied, and would fully supply NRL, and others not at all. Further, the pleaded case does not accommodate the factual situation, in as much as Melbourne Storm, and three new clubs coming into existence as a result of mergers, are to participate in the year 2000 competition.' [298] Souths now contends that his Honour was in error as the words 'restricting or limiting' qualify supply or acquisition, not services. Supply or acquisition relates both to the service to be supplied or acquired and the persons to or from whom the services would be supplied or acquired. "Restriction" or "limitation" is not confined to the supply or acquisition of only part of the services. It extends to the supply or acquisition of services to or from some only of the particular persons. [299] For my own part I agree with the construction placed on s 4D(1) by Hely J. The concern of the provision for present purposes is with the partial supply to, or acquisition from, particular persons or classes of persons. Equally I agree with his Honour that the pleading does not reflect the known and anticipated facts as at 19 December 1997. Though not a club participating in the 1997 competition, it was envisaged (as happened) that Melbourne would be a team in the 1998 competition and would be involved in the selection process for 2000. To ignore Melbourne, or for that matter merged or joint venture teams, simply contrives artificially the particular persons at whom the proscribed purpose is alleged to be directed." Two points can be made, at this point, about this passage. The first, as mentioned already, is that no express and separate finding is made by his Honour about the alleged proscribed purpose of the fourteen team term as it concerns restriction or limitation of the supply or acquisition of the relevant services. Reference is simply made to the earlier finding about purpose as it concerns prevention. Secondly, the primary judge again speaks of supply of services to "teams" and acquisition of services from "teams" in [296] though it must be immediately acknowledged that in so doing his Honour was apparently paraphrasing the submission of Souths. 162 Before further considering this issue it is necessary to refer to the pleadings and the submissions made by Souths at the trial to deal with an issue in the appeal about the nature of the case put by Souths to the primary judge and the extent to which the case raised in the appeal was broader. The respondents contended it was, which can be illustrated by the following exchange during the hearing of the appeal with senior counsel for News counsel: "MOORE J: … When in the facts of this case one is considering restriction or limitation because it seems to me, at least on one view, both the effect and purpose of the whole arrangement was to ensure that of the 22 clubs existing as at December 1997 some, if not all of them, would be acquiring services in a different context. That is as joint venturers or as merged entities and would be providing services in the same context. I must say I find difficulty in not seeing that sort of arrangement as an arrangement that has the effect of restricting or limiting the service that was provided and acquired if one takes, to use an expression I used yesterday, a snapshot of circumstances in December 1997. Because it would have meant that Souths, at least potentially, would have been providing a service and acquiring a service. Not as a stand-alone club with its own team, as a merged entity providing presumably a hybrid team and acquiring services in the same context. MR MEAGHER: The short answer to your Honour's question is that case was never run. MOORE J: Well, I know you've said that but I don't understand what the case was that his Honour's dealing with in paragraphs 294 and 5." 163 Souths took issue with the contention that its case had been as narrowly framed as the respondents suggested. Senior counsel for Souths handed up extracts from its contentions and written submissions before the primary judge which are referred to shortly. 164 In the third further amended statement of claim ("the statement of claim") the issue of restricting or limiting was addressed in paragraphs 20 and 21 which provided: "20. In entering into the NRL Partnership Agreement the ARL and News contravened s.45(2)(a)(i) of the Act and of the Schedule version of Part IV of the Act in that they made a contract or arrangement or arrived at an understanding containing an exclusionary provision within the meaning of s.4D(1) of the Act (namely, the 14 team term) which had the purpose of: (a) restricting or limiting the supply of services (namely organising and running top level rugby league competitions) by the NRL Partnership to particular persons, namely, the clubs which had participated in the ARL competition and the Super League competition prior to 19 December 1997 and who had not withdrawn from those competitions before that date; and (b) … 21. In entering the NRL Partnership Agreement, the ARL and News contravened s.45(2)(a)(i) of the Act and of the Schedule version of Part IV of the Act in that they made a contract or arrangement or arrived at an understanding containing an exclusionary provision within the meaning of s.4D(1) of the Act (namely, the 14 team term) which had the purpose of: (a) restricting or limiting the acquisition by the NRL Partnership of services, (namely, the provision of rugby league teams to play in the NRL competition) from particular persons (namely, the clubs which had participated in the 1997 ARL and Super League competitions and who had not withdrawn from those competitions before 19 December 1997); and (b) …" It can be seen that paragraph 20 raised the issue of whether ARL and News through the NRL Partnership were parties to an exclusionary provision which had the purpose of restricting or limiting the supply of services to the clubs participating in the rival competitions prior to 19 December 1997 (but which had not withdrawn). The pleaded services, the supply of which was said to be restricted or limited, were organising and running top level rugby league competitions. Paragraph 21 raised a similar issue in relation to the acquisition of services, the provision of rugby league teams to play in the NRL competition, from the same clubs. We were not taken to any answers to particulars or other material which could be viewed as limiting the case as pleaded. 165 As noted earlier, in this appeal Souths handed up an extract of a statement of issues and contentions and written submissions it provided to the primary judge. In the issues and contentions the following is said: "Purpose of reduction or limitation of supply of competition organising services or of acquisition of teams services to particular persons 11. The effect and purpose of the 14 team term is to limit or restrict the supply by the ARL and News of their services as competition organisers to particular persons, being the 20 clubs which participated in the 1997 competitions, by their stipulating that such services would not be supplied to more than 14 teams from 2000. Conversely, the effect and purpose of the provision was to restrict or limit the acquisition of teams' services from those particular persons by being willing to acquire the services of only 14 teams. 12. Hely J rejected this argument on the basis that there would be no restriction or limitation (in the sense of a partial supply or acquisition) of services to the 1997 clubs. Rather some would be fully supplied and would fully supply NRL, and others not at all. (Judgment 9 December 1999, para 61). However, the words 'restricting or limiting' qualify supply or acquisition, not services. Supply or acquisition relate both to the services to be supplied or acquired and the persons to or from whom the services would be supplied or acquired. 'Restriction' or 'limitation' is not confined to the supply or acquisition of only part of services. It extends to the supply or acquisition of services to or from some only of particular persons." 166 A similar theme emerges in Souths' written submissions. They read: "Purpose of restriction or limitation of supply of competition organising services or of acquisition of team services to particular persons (or particular class) 78. It is clear that the clubs which participated in the 1997 rival competitions were particular persons within the meaning of s.4D and comprised a particular class. The effect and purpose of the arrangements announced on 19 December 1997 (and the subsequent agreements), was that competition organising services would not be supplied to more than 14 teams from 2000 and team services would not be acquired from more than 14 teams in 2000. This was a restriction or limitation on the supply of competition organising services to those clubs and the acquisition of team services from them. The position of Melbourne as a new entrant is irrelevant. For the reasons advanced in paragraphs 11 and 12 of the applicant's statement of issues and contentions, the words "restricting or limiting" are not confined to the partial supply or acquisition of services in the sense of the supply or acquisition of only some services. "Restricting or limiting" qualifies supply or acquisition, not services. Supply or acquisition relate both to the services to be supplied or acquired and the persons to or from whom the services would be supplied or acquired. The words 'restricting or limiting' extend to the supply or acquisition of services to or from some only of the particular persons (or persons in the particular class) to or from whom the parties to the arrangement supplied and acquired services at the time the arrangement was made." 167 The approach of this Full Court must be consistent with the principles in Water Board v Moustakas (1997) 180 CLR 491 at 497 and also Nescor Industries Group Pty Ltd v Miba Pty Ltd (1997) 150 ALR 633. However I rather apprehend the position is as stated by senior counsel for Souths in reply in the appeal: "Our learned friends have referred on a number of occasions to the way in which the case was conducted below, as though there was some kind of magic about it and every aspect of the case had to be like the rich person riding the camel through the pin hole, as it were. But if one looks at the pleadings, the opening submission of the evidence, the closing submissions and the judge's reason, one can see the case wasn't on a very narrow basis. In a sense, all that one has is a situation where you've got the arrangements that were entered into were clearly established. One had a situation where the evidence of the witnesses was evidence which said what one would expect them to say about the documents and in those circumstances really, the question really was whether it was a case to which section 4D applied." 168 I am satisfied that Souths raised as an issue the question of whether the fourteen team term was an exclusionary provision because of its effect on both the provision of services to and the acquisition of services from the clubs participating in the rival competitions before 19 December 1997 (but which had not withdrawn). It did so by alleging that the clubs were particular people and the fourteen team term had a purpose of limiting or preventing the supply and acquisition of services to and from those clubs in a way proscribed by ss 45 and 4D. 169 It may be accepted that in par 78 of the quoted extract from Souths' written submissions reference was made to supply to and acquisition from teams and not clubs (and also par 11 of the contentions which spoke of both supply to the clubs and also to the teams). To this extent the submissions departed from both the pleaded assertion and the contention in pars 11 and 12 of the contentions (which are ambiguous) which speak of supply to and acquisition from clubs. However the application of ss 4D and 45 to the fourteen team term as it might impact on the clubs viewed as particular people was raised by Souths in the proceedings before the primary judge and can be ventilated again in the appeal. 170 In par 5 of the statement of claim, Souths pleaded that in 1997, teams were provided for the ARL competition by Souths and what appear to be twelve other clubs though their status or identity was not specified. In par 6, Souths pleaded that in 1997 teams were provided for the Super League competition by eleven clubs though their identity was not specified. While all or some of these matters were not admitted in the defences of News and NRLI and of NRL, the primary judge accepted (at [19], [20] and [173]) that there were twenty-two clubs providing their teams. It appeared to be common ground in this appeal that each club was incorporated and it was not suggested each was not "a person": see also the 1996 appeal decision (section II and, in particular, part 9). Reference is sometimes made to twenty clubs (see, for example, paragraph 11 of the contentions quoted in par 165 above) and not the twenty-two clubs referred to in the pleadings. This is probably because three teams fielded by clubs in 1997 did not participate in the 1998 competition and one new team played in the 1998 competition (Melbourne). In the appeal, the parties could not say with certainty whether the clubs that dropped out did so before the 19 December Understanding was arrived at though the terms of the Understanding suggest it was before (that is, the Perth, Hunter and South East Queensland teams had dropped out). For my part, I do not view it as significant whether the discussion concerns twenty or twenty-two clubs. I will refer to them as the 1997 clubs. 171 The services provided by the 1997 clubs (and correspondingly acquired) before 19 December 1997 were referred to in par 7 of the statement of claim: "(c) the acquisition of services, being the provision of rugby league teams to play in the top level rugby league competitions organised and run by the ARL on the one hand, and News and SLPL on the other hand, from Souths, the clubs and franchisees which had participating [sic] in 1997 in the ARL Optus Cup and the Super League competition including certain of the Clubs and any other rugby league club willing and able to provide a team to participate competitively in a top level rugby league competition." 172 This is a reference to, among other things, the provision of a team by each 1997 club in the rival competitions prior to 19 December 1997. It was those clubs who also received services from the competition organisers of the rival competitions. Those services, relevantly, were referred to in par 7 as: "(b) the supply of the services of organising and running top level rugby league competitions to Souths, the clubs and franchisees which had participating [sic] in 1997 in the ARL Optus Cup and the Super League competition including the Clubs, and to any other rugby league club willing and able to provide a team to participate competitively in a top level rugby league competition". 173 Again, the focus of the services pleaded is the provision of services to a club who had provided a team or wished and was able to provide a team. 174 I should briefly comment on the way Souths' case was pleaded in pars 20(a) and 21(a) of the statement of claim. There is no apparent reason why it is necessary to isolate and consider by reference to the facts, particular elements of the expression "purpose of preventing, restricting or limiting". Neither the language or purpose of the section suggest this is necessary. The "or" is, in my opinion, dispersive: see Electricity Trust of South Australia v Krone (Australia) Technique Pty Ltd (1994) 51 FCR 540 and Minister for Immigration & Ethnic Affairs v Baker (1997) 73 FCR 187. 175 That the words are dispersive is reinforced, in my opinion, by the separate use of the words "limiting" and "restricting". It is difficult to discern what is intended by the separate use of those words. The defined meaning of the verbs "restrict" and "limit" are in the Macquarie Dictionary: "restrict: to confine or keep within limits, as of space, action, choice, quantity etc limit: to restrict by or as by fixing limits; to confine or keep within limits; (Law) to fix or assign definitely or specifically" and in The New Shorter Oxford Dictionary: "restrict: limit, bound, confine; restrain by prohibition, prevent from. limit: assign, make within limits, appoint, fix definitely, specify." The resort in each definition to the other word suggests that if there is a distinction to be drawn between the meaning of the two words, it is not a significant one. It may be that the use of the word "restricting" flows from the enactment of the Trade Practices Act 1965 (Cth) adopting, it would appear, notions of "restriction" from the Restrictive Trade Practices Act 1956 (UK): as to the meaning of which see: Re Telephone Apparatus Manufacturers' Application (1963) LR 3 RP 462 at 473, 483, [1963] 2 All ER 302 at 307; Re British Waste Paper Association's Agreement (1963) LR 4 RP 29, [1963] 2 All ER 424; Re Ravenseft Properties Ltd's Application [1978] QB 52 at 66-67, [1977] 1 All ER 47 at 53-54. The notion of limiting appears to have arisen in the amendments made in 1977 to the Act (which included the introduction of s 4D) following the Swanson Report. However it is unlikely that words without discernably different meanings are intended to identify, in the one phrase, alternatives. 176 While a provision may be an exclusionary provision because it has a purpose of, for example, only preventing the supply of goods or services, it may be a provision with a purpose of doing all or any of preventing, restricting or limiting supply to the particular persons or classes of persons in combinations or permutations that may not be revealed until and unless the provision was given effect to by the parties to the contract arrangement or understanding. However having regard to the way the case has been pleaded, it is necessary to focus on the restriction or limitation of the supply and acquisition of the services identified in the pleadings. 177 This leads to the question of whether the primary judge erred in construing and applying s 4D(1)(b). It is to be recalled that his Honour's view was that the fourteen team term was thought to have application if there was to be a restriction or limitation by a partial supply or acquisition of services but, as Hely J had concluded, there was to be, as a matter of fact in this matter, no partial supply. Some 1997 clubs would be fully supplied and would supply fully, others not at all. For my part, I do not view the language or apparent statutory purpose of par (b) of s 4D(1), to the extent that it speaks of "restricting or limiting", as rendering the paragraph applicable only to situations where there is partial supply in the simple sense that all the previous recipients or providers of the services continued to acquire or supply them but in a reduced amount or at a reduced level. The meaning of "services" is not constrained by the definition in s 4 which is in wide terms and not exhaustive: see Sun Earth Homes Pty Ltd v Australian Broadcasting Commission (1990) 98 ALR 101 at 107 and would comprehend services which could be intangible in character and potentially unquantifiable in terms of amount or volume supplied or acquired. This is illustrated by Trade Practices Commission v Legion Cabs (Trading) Co-operative Society Ltd (1978) 35 FLR 372 in which Franki J held that a radio service provided to taxi drivers constituted the provision of services for the purposes of s 4. Services comprehended by the Act might have characteristics involving quality, quantity and frequency. They might have other characteristics. Two competitors may agree, in relation to services provided to or by each of them, that their suppliers provide (and they acquire) or consumers (in the broadest sense) receive services with one or a number of these characteristics altered in a way that would limit or restrict the supply or acquisition of services that had been provided, to that point, to or by the suppliers or consumers. 178 Indeed if a substantial purpose of the fourteen team term is as I have described it in par 158 above, two questions arise about the scope of s 4D(1)(b)(i) as it might apply to the fourteen team term enlivened by s 45. The first is whether there would be a restricting or limiting of the supply or acquisition of the pleaded services if the fourteen team term might result in some of the 1997 clubs having to field a team in conjunction or collaboration with one or a number of the other clubs. The second and related question is whether it can be said to be a restricting or limiting of supply or acquisition if the fourteen team term might have the result that only some but not all of the 1997 clubs would field a team in conjunction or collaboration with other clubs but some of the 1997 clubs would continue to field a team in their own right. 179 I turn to consider the first question. The underlying purpose of s 4D in the statutory scheme in which it is found was described by Lockhart J in Gallagher v Pioneer Concrete (NSW) Pty Ltd (1993) 113 ALR 159 at 209: "Section 4D defines the term 'exclusionary provision' for the purposes of s 45 as being in essence a collective boycott, by referring to any provision in an agreement between competitors which has the purpose of either restricting the supply of goods or services by all or any of those competitors to particular persons or classes or restricting the acquisition of goods or services by all or any of those competitors from particular persons or classes of persons." If ss 4D and 45 are intended to prevent competitors engaging in collective boycotts by, amongst other things, restricting the supply or acquisition of services, then there is no apparent reason for treating "restricting" or "limiting" as operating only in a way where there might be a quantifiable reduction in the services provided or acquired. 180 It must also be borne in mind as the Full Court said in the 1996 appeal decision at 558: "The prohibition imposed by s 45 of the TP Act applies irrespective of the extent to which putative exclusionary provisions affect competition in a market. It is plain that the Parliament regarded horizontal arrangements of an exclusionary character as having a necessary tendency to inhibit competition and that this was regarded as sufficient to proscribe the making of such arrangements." 181 It may be accepted that, as a matter of grammar, the expression "preventing, restricting or limiting" in s 4D(1)(b) qualifies the words "the supply" and "the acquisition" in both subpars (i) and (ii). However it does not follow, in my opinion, that s 4D was not intended to comprehend provisions, which had as their purpose the cessation of supply or the provision of partial supply on the footing that the services provided or acquired were constant in character or that changes to the services were irrelevant. The supply of something (being services) to a number of people can be restricted or limited if the character of that which is supplied is altered though its fundamental character remains the same. The same can be said in relation to the acquisition of those services. 182 I note, in passing, that the services alleged to have been provided by the ARL clubs and which were accepted by the Full Bench in the 1996 appeal decision as an element in the successful claim by News that provisions in the Commitment and Loyalty agreements were exclusionary provisions, were the participation "by their teams in rugby league competitions" (emphasis added): see (1996) 64 FCR at 559 as to the description of the services and 560 - 566 as to the conclusion concerning competition. These were the services the clubs were providing in competition with each other. 183 A central question posed by s 4D(1)(b) in the present matter is whether a substantial purpose of the fourteen team term was to effect a restriction or limitation. 184 Before 19 December 1997 the services supplied by each of the 1997 clubs and acquired by the organisers of the rival competitions was the provision of a team. To indicate, as the adoption of the fourteen team term did, that the 1997 clubs then supplying twenty-two teams could, in the year 2000, supply, and the organiser would only acquire, fourteen teams (even if the clubs were able to do so as a merged club or through a joint venture) constituted, in my opinion, conduct which had the purpose of at least restricting or limiting the acquisition of team services from the 1997 clubs and probably the supply of organising services to them. 185 This may be illustrated by referring to the position Souths was in though considered in the context of the position each of the other clubs (identified by reference to their circumstances at 19 December 1997) was in also. Souths had its own team and had fielded it in the 1997 competition. Souths (unlike some, but not all, of the other 1997 clubs) had fielded its team for decades. It had provided a team and the ARL had acquired the services (that is, the provision of a team) from Souths both in 1997 and earlier. The ARL had provided services which facilitated Souths competing with its team in a top level rugby league competition. The adoption of the fourteen team term was effectively a declaration to Souths and each of the other clubs competing in the rival competitions that they collectively could not do what to that point each of them had done, namely field their team in a top level rugby league competition. 186 The organisers of the rival competitions were indicating that they would no longer acquire the services the clubs had been providing and would both limit and restrict the services they would acquire. They would not acquire services manifest by the provision of twenty or twenty-two teams but would acquire services manifest by the provision of fourteen teams. It may be accepted that under the 19 December Understanding any club, including Souths, would, at the least, be able to continue to provide a team by merging or forming a joint venture. However the provision of a team of this character was not the provision of the same services that had been provided, and correspondingly acquired, before the adoption and implementation of the fourteen team term. It would not be a team of that club but a hybrid team of two or more clubs. In this way, the services to be acquired by operation of the fourteen team term, would, as to some of the 1997 clubs, not be the same services that had been acquired formerly when the two competitions conducted the rival competitions. The services acquired would be limited and restricted. 187 Before turning to the second question referred to in par 178 above, it is convenient to deal with one further matter concerning the application of s 4D(1)(b). In supplementary written submissions, some respondents put in issue whether the 1997 clubs were, for the purposes of s 4D(1)(b), particular persons on the footing that for persons to be particular they had to be part of a larger universe of persons. It was submitted the 1997 clubs were not. 188 The meaning of the expression "particular persons" was considered in Bullock v Federated Furnishing Trades Society of Australasia (1985) 5 FCR 464. In issue before the Full Court was whether an interim injunction should have been dissolved by the primary judge. The undisputed facts were that a union forced carpet suppliers to enter agreements to the general effect that they would not give work to self-employed carpet layers working as independent contractors. There were apparently 680 such carpet layers in Melbourne and a total of 1275 in all of Victoria. One of the issues addressed by the primary judge in that matter was whether the agreements were intended to operate in relation to particular persons. The primary judge said: "Section 4D(1)(b)(i) and (ii) make reference to the preventing, restricting or limiting the acquisition of services from 'particular persons'. In my view, none of the agreements relevant to this proceeding would fall within the definition of 'exclusionary provision' in s 4D. The reason for this is that in each case the agreement intends to exclude all carpet layers and not particular persons from operating otherwise than in accordance with its terms. In my view, s 4D is plainly designed to apply to provisions which exclude particular persons in the sense of persons whose identity is known or can be ascertained. It is not directed towards the exclusion of the entirety of the available body of persons who could conceivably be called upon to perform or supply the relevant services." (Emphasis added.) Of these conclusions, Woodward J said (Smithers and Sweeney JJ agreeing) (at 473): "It is unnecessary and undesirable that any concluded view on the meaning of these sections should be reached for the purposes of this application. It is sufficient to say that, in my view, it is clearly arguable that 'self-employed carpet layers' or at least 'the self-employed carpet layers who have in the past been employed by the carpet suppliers who have been forced to sign the FFTSA agreement' are particular persons within the meaning of the Act. It is arguable that particular persons may be identified by general description, or as members of a designated class, without being individually named." 189 It must be accepted that the construction referred to by his Honour was advanced as arguably correct which was all the Full Court was, in the circumstances, being called on to consider. Nonetheless, this passage suggests that persons can be particular persons if they are all the persons potentially affected by the allegedly proscribed conduct as long as they can be identified. 190 A day after the Full Court's judgment in Bullock, Franki J gave judgment in Trade Practices Commission v TNT Management Pty Ltd (1985) 6 FCR 1. One issue was whether an understanding between freight carriers not to deal through transport brokerage agencies was a proscribed arrangement or understanding within s 4D (which, in the form it was then in, referred to "particular persons" but not "classes of persons"). As to whether the arrangement or understanding concerned "particular persons" his Honour said (at 75-76): "… The requirement of s 4D(b)(i) and (ii) that the 'purpose of' relates to the supply of services to or the acquisition of services from particular persons or the supply of services to or the acquisition of services from particular persons in particular circumstances or in particular conditions must be satisfied. It is necessary to have regard to the meaning of the words 'particular persons'. The arrangement or understanding proved is not limited to Tradestock but extends to a class of intermediaries although the statement of claim excludes all but Tradestock in the allegations of giving effect to. Further, the arrangements or understandings proved did not extend to the question of dealing with any 'particular persons' in the category of those seeking freight forwarding services. The question arises whether the arrangement or understanding proved is sufficient to satisfy the words 'particular persons' in s 4D. It is relevant to note that s 47, the exclusive dealing section of the Act, draws a distinction between 'particular persons' and 'classes of persons'. I accept the submissions of the defendants in this regard that an arrangement or understanding not to deal with a class or category of persons does not satisfy the requirement of an arrangement or understanding not to deal with 'particular persons'. However, the word 'persons' will also include the singular. That conclusion is sufficient of itself to answer the claim made of giving effect to an exclusionary provision." 191 The problem revealed in that case was that the persons affected were not identified or identifiable. It was following this decision that the words "or classes of persons" were added by the Trade Practices Revision Act 1986 (Cth). The amendments were made to ensure that a provision of a contract, arrangement or understanding could be an exclusionary provision even if the identities of the individual persons on whom it might operate were not known but the persons could be identified as members of an identified or identifiable class. This was accepted by the Full Court in Pont Data which said at 488: "(T)he appellants referred to the form taken by s 4D before it took its present form after it was amended by s 6 of the Trade Practices Revision Act 1986 (Cth), which inserted the words 'or classes of persons' after 'particular persons'. The amendment appears to have been made in the light of what had been said as to the limitations upon the phrase 'particular persons' in Bullock v Federated Furnishing Trades Society of Australasia (1985) 5 FCR 464 at 473, and in Trade Practices Commission v TNT Management Pty Ltd (1985) 6 FCR 1 at 75-76. The result would appear to broaden the definition of s 4D by going from particular persons to particular classes of persons. However, in a submission having an unpleasing resonance of the class-closing rules and of distinctions between general, special and 'hybrid' powers of appointment, the appellants contended that the restraints upon the use of the Signal C information by persons other than those bound into the Dynamic Agreement as 'Licensees' could not have the purpose of preventing, restricting or limiting the supply of services to a 'particular' class of persons, or the acquisition of services by a 'particular' class of persons. It was said that the persons or classes excluded must still be 'identified' if s 4D is to apply. That may be conceded … ." 192 The word "particular" as an adjective qualifying "persons" may mean no more than identified or identifiable or ascertained or ascertainable persons to whom or from whom the goods or services are supplied or acquired in contradistinction to the generality of people who might acquire or be supplied with the services. As Toohey J said in Hughes v Western Australian Cricket Association Inc (1986) 19 FCR 10 (at 39-40): "Section 4D(1)(b)(i) was amended by the Trade Practices Revision Act 1986 (Cth), which was assented to on 13 May 1986 and took effect as from 1 June. But, in its unamended form which is the form relevant to this proceeding, the subparagraph refers to the purpose of preventing, restricting or limiting the supply of services to or the acquisition of services from 'particular persons', not particular 'classes of persons'. The identity of the persons excluded must be known or capable of ascertainment. The provision is not directed to the exclusion of the entirety of the available body of persons who could conceivably be called upon to perform the relevant services. The question is one of fact: Bullock v Federated Furnishing Trades Society Australasia (1985) ATPR 40-577. In the TNT case Franki J held (at 75) that the class of persons in question was not sufficiently particular." 193 The meaning of the adjective "particular" used in a broadly analogous way has been considered on two other occasions though in different statutory contexts. In R v Nicholas [2000] 1 VR 356, the Victorian Court of Appeal considered whether a warrant authorizing the use of a listening device was invalid because it failed to identify the suspected person or persons sufficiently to satisfy the expression "a particular person" in s 219B(5) of the Customs Act 1901 (Cth), which relevantly provides: "Where, upon application being made to a Judge for the issue of a warrant to a Commonwealth law enforcement agency under this section authorizing the use of a listening device in relation to a particular person, the Judge is satisfied, by information on oath, that: (a)... (b)... the Judge may, by warrant under his hand in accordance with the prescribed form, authorize officials of the agency, ... to use a listening device …" 194 A warrant was issued under s 219B authorising the use of a listening device in relation to "a particular person, namely a person who obtains or seeks to obtain possession of a bag described as an "ELITE" brand, soft sided, carry bag on casters, black in colour with brown trimming, containing 24 blocks of compressed white powder each weighing....". The Court held (at [78]) that: "upon a proper construction of the section and its evident purposes, the person or persons suspected were clearly not sufficiently identified for one or more of them to satisfy the expression "a particular person" within the meaning of s 219B(5). At the very least, even assuming a person or persons can be identified by characteristics other than their names and addresses or occupations, there was no identification of any individual, only the identification of the type of act or acts which might on their occurrence purport to bring an individual within the purview of the warrant." 195 In response to the argument that the power to issue warrants should be more generously interpreted, the Court of Appeal said (at [94]): "There would have been no need to employ the word "particular" if the interpretation placed on the words by the Crown were to be accepted. The word "person" or "that person" could equally have been adopted …. Particularity was intended, in our opinion, by the legislature to ensure that warrants should not be issued of a general kind, of the kind indeed upon which the common law has for at least three centuries frowned." 196 In Chenoa Pty Ltd v Shell Company of Australia Ltd (1988) 81 ALR 1, a Full Court of this Court had to consider the meaning of the phrase "particular corporation" in the context of s 6(1D) of the Petroleum Retail Marketing Franchise Act 1980 (Cth) ("the Franchise Act"). Section 6(1D) provided that, inter alia: "Where - (a) premises were, in a statement lodged under s 11 of the Petroleum Retail Marketing Sites Act 1980 at any time before 1 September 1984, specified as being a retail site operated by a particular corporation; and (b) …" the provisions of the Franchise Act did not apply. 197 Shell Company of Australia Ltd's parent company, Shell Australia Ltd, had lodged a statement in purported compliance with s 11. The name of the operating corporation listed in relation to the retail site which was the subject of the proceedings was simply recorded as "Shell". The issue arose whether the requirements of s 6(1D) had been satisfied notwithstanding that the Shell group generally had been named as the site operator and not Shell Company of Australia Ltd specifically. The Full Court (at 10) held: "It is a condition precedent to the application of s.6(1D) to a particular franchise agreement that such agreement concerns premises which were, in a statement lodged under s.11 before 1 September 1984, "specified as being a retail site operated by a particular corporation". It is difficult to think of words more apt to convey the insistence of the legislature that the relevant statement shall have precisely identified a single corporation. The Shorter Oxford English Dictionary gives, as one meaning of the word "particular", the words "relating to a single definite thing or person ... as distinguished from others". We think that it is in this sense that the word is used in the present context, to refer to a single corporation as distinguished from others." What then is intended by the use of the word "particular" in s 4D? It appears to have two possible meanings. The first is that the word when qualifying "persons" serves to limit the operation of s 4D to an apparently exclusionary provision which is proposed by the colluding competitors to operate on identified or identifiable persons known to the competitors although it would not be material whether it might operate on other persons as well. On this approach, s 4D would have no application if the colluding competitors made or arrived at a contract, arrangement or understanding which was proposed simply to operate on any person who might be affected by it and the colluding parties did not know, when making or arriving at the contract arrangement or understanding, who any of the persons might be. That is, the provision would be an exclusionary provision if it was to operate on identified or identifiable persons but it would not be if it was to operate only on the generality of persons. The second, and narrower meaning, is that the word serves to limit the operation of s 4D to an apparently exclusionary provision that is proposed by the colluding competitors to operate only on identified or identifiable persons and that the competitors intended that the provision would not operate on others who were persons to whom or from whom the competitors might acquire or supply goods or services. That is, the provision would be an exclusionary provision only if it was intended to operate selectively on identified or identifiable persons. 198 In my opinion the word has the former of these meanings. There is no apparent reason to give the provision a narrower meaning then the language might reasonably bear. I would respectfully adopt the observations of Mason CJ in Devenish v Jewel Food Stores Pty Ltd (1991) 172 CLR 32. The Chief Justice was in a minority concerning the meaning to be given to s 45D(1)(b) of the Act. However the majority did not disapprove of his Honour's observations (see, in particular, Brennan J (Dawson J agreeing) at p 47.9) though plainly there was a difference concerning the result of the application of those principles. The Chief Justice said at 44: "Moreover, s. 45D(1) falls within Pt IV of the Act, the general purpose and scope of which have been described by Deane J. as containing 'provisions which proscribe and regulate agreements and conduct and which are aimed at procuring and maintaining competition in trade and commerce': Refrigerated Express Lines (A/asia) Pty. Ltd. v. Australian Meat and Live-stock Corporation [No. 2] (1980) 44 FLR 455, at p. 460; 29 ALR 333, at p. 340. The evident purpose and policy underlying this Part of the Act recommends a broad construction of its constitutent sections. In a similar context, the United States Supreme Court has stated: 'It has been said, of course, that the antitrust laws, and Robinson-Patman in particular, are to be construed liberally, and that the exceptions from their application are to be construed strictly. … Because the [Robinson-Patman] Act is remedial, it is to be construed broadly to effectuate its purposes': Abbott Laboratories v. Portland Retail Druggists Assn., Inc. (1976) 425 US 1, at pp. 11-12. (See also United States v. McKesson & Robbins (1956) 351 US 305, at p. 316; Perkins v. Standard Oil Co. (1969) 395 US 642, at p. 647.) Section 45D(1) may similarly be described as being of remedial legislative character and accordingly 'should be construed so as to give the fullest relief which the fair meaning of its language will allow': Bull v. Attorney-General (N.S.W.) (1913) 17 CLR 370, at p. 384, per Isaacs J. See also Samuel v. Newbold [1906] AC 461, at p. 467; Wilson v. Moss (1909) 8 CLR 146, at p. 165; Holmes v. Permanent Trustee Co. of New South Wales Ltd. (1932) 47 CLR 113, at p. 119; Waugh v. Kippen (1986) 160 CLR 156, at p. 164. My comments in another context are equally applicable to this case: 'It is reasonable to impute to Parliament an intention that the provision, which is a protective provision, be given "the widest possible scope"': Day & Dent Constructions Pty. Ltd. v. North Australian Properties Pty. Ltd. (1982) 150 CLR 85, at p. 108." and at 45: "When a provision in a statute is intended to be protective and remedial and to that end proscribes certain conduct, strong reasons are required to justify an interpretation of the provision which would narrow the scope of the provision and exclude conduct falling within its literal terms." 199 These observations were adopted and applied by Lockhart and Gummow JJ in Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470 at 503 and Burchett J in Trade Practices Commission v The Gillette Company (1993) 45 FCR 366 at 375. 200 Section 4D is intended to operate in conjunction with s 45. The former section is part of the statutory scheme found in Part IV (notwithstanding that it is located in Part 1) about which Mason CJ spoke in the passage just quoted. In my opinion the expression "particular persons" is to be taken to be a reference to identified or identifiable persons whether or not there are other identified persons or otherwise on whom the apparently exclusionary provision is not intended to operate. That is, it is not necessary that a provision operate selectively in the way just discussed for it to be an exclusionary provision. 201 This leads to a consideration of the second question posed in par 178 above, namely whether it can be said there existed a purpose of restricting or limiting of supply or acquisition to the 1997 clubs if it was in contemplation that some but not all of the 1997 clubs would field a team in conjunction or collaboration with other clubs though some of the 1997 clubs would continue to field a team in their own right. This really raises the question of whether competitors can have a purpose of restricting or limiting supply of services to particular persons and the acquisition of services from them if it is not known, when the exclusionary provision was agreed to, who of the particular persons would bear the burden of the restriction or limitation though it could be expected some of the particular people would not. 202 The language of s 4D (when read with s 45(2)(a)(i)) does not, in my opinion, preclude its application in these circumstances nor would such an application be inconsistent with the apparent purpose of the provision. It may be accepted that if s 4D were to operate in this way, it would be because the expressions "supply … to" and "acquisition … from" are not to be read as meaning "supply … to each of (or all)" or "acquisition … from each of (or all)" the particular persons or members of the particular class. In relation to the parties to the contract, s 4D(1)(b) speaks of "all or any of the parties", which might suggest the expressions just referred to should not, in the absence of the same or similar words, be given the same or a similar meaning. However there is no apparent reason for giving the expressions "supply … to" and "acquisition … from" that meaning, in a way that might limit the operation of s 4D as enlivened by s 45, in a statutory context where notions of purpose and preventing, hindering and restricting are central. 203 Section 4D (enlivened by s 45(2)(a)(i)) is directed to arrangements between competitors that may adversely affect their suppliers or customers. It has in this field of operation, as it central focus, the purpose of the competitors when entering such arrangements. Arrangements could be entered that were intended to have an apparently proscribed effect on some but not all of the competitors' suppliers or customers. That is, it was proposed that supply or acquisition of goods would be reduced, by operation of the arrangement, on some but not all of the suppliers or customers because of events that had not yet occurred. Those events may be influenced by the conduct of the suppliers or customers. However the fundamental or underlying purpose of the competitors would have been to limit or restrict supply to or acquisition from particular persons with the burden of the limitation or restriction being revealed as the exclusionary provision was given effect to by the colluding competitors. 204 Again, adopting the approach of Mason CJ in Devenish v Jewel Food Stores Pty Ltd, there is no apparent reason to read down, or treat as qualified, the expression "supply … to" or "acquisition … from" in the way just discussed. As the Chief Justice said, strong reasons are required to justify an interpretation of the provision which would narrow the scope of the provision and exclude conduct falling within its literal terms. In my opinion, the fact that the fourteen team term contemplated some of the 1997 clubs would continue to field their own teams in 2000 and following years does not remove the fourteen team term from the scope of s 4D as enlivened by s 45(2)(a)(i). 205 For these reasons I am satisfied that the fourteen team term was an exclusionary provision.