Australian Postal Corp v Pac-Rim Printing Pty Ltd
[1999] FCA 640
•14 MAY 1999
FEDERAL COURT OF AUSTRALIA
Australian Postal Corp v Pac-Rim Printing Pty Ltd [1999] FCA 640
POST AND TELECOMMUNICATIONS – letters – delivery of – services reserved to Australian Postal Corporation – exceptions to reserved services – whether items carried or delivered fall within exception to reserved services – whether ‘leaflets’.
WORDS AND PHRASES – ‘leaflet’.
STATUTORY INTERPRETATION – maxims of construction – noscitur a sociis.
Australian Postal Corporation Act 1989 (Cth) ss 3, 29, 30(1)(c), 31
Acts Interpretation Act 1901 (Cth) s 15AAAustralian Postal Corporation Amendment Act 1994
Australian Postal Corporation v Streetfile Pty Ltd (unreported, 6 November 1996, Northrop J) referred to
Australian Postal Corporation v Pac Rim No 3 Pty Ltd (1998) 79 FCR 241 referred to
Case 48/96 96 ATC 470 referred toCPH Property Pty Limited v Commissioner of Taxation [1998] 98 ATC 4983 at 4995-4996 referred to
Prior v Sherwood (1906) 3 CLR 1054 referred to
R v Refshauge (1976) 11 ALR 471 at 475 referred to
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 376 referred to
Federal Commissioner of Taxation v Applegate (1979) 27 ALR 114 at 116, 123, and 127 referred to
Abrahams v Cavey [1968] 1 QB 479 referred to
Letang v Cooper [1965] 1 QB 232 at 247 referred to
Commissioner of Taxation v Thomson Australian Holdings Pty Ltd (1989) 25 FCR 481 at 486 referred to
Netcomm (Australia) Pty Ltd v Dataplex Pty Ltd (1988) 81 ALR 101 at 106 referred toAUSTRALIAN POSTAL CORPORATION v PAC-RIM PRINTING PTY LTD
(ACN 051 757 718)
VG 300 of 1998WEINBERG J
14 MAY 1999
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 300 OF 1998
BETWEEN:
AUSTRALIAN POSTAL CORPORATION
ApplicantAND:
PAC-RIM PRINTING PTY LTD (ACN 051 757 718)
RespondentJUDGE:
WEINBERG J
DATE OF ORDER:
14 MAY 1999
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The application be allowed.
2.Declare that Pac-Rim Printing Pty Ltd has engaged in conduct in contravention of s 29 of the Australian Postal Corporation Act 1989 (Cth) by carrying or delivering, or causing to be carried or delivered, within Australia, the article tendered in these proceedings as part of exhibit “A2” and described in the reasons for judgment as “item (a)”.
3. The respondent pay the applicant’s costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 300 OF 1998
BETWEEN:
AUSTRALIAN POSTAL CORPORATION
ApplicantAND:
PAC-RIM PRINTING PTY LTD (ACN 051 757 718)
Respondent
JUDGE:
WEINBERG J
DATE:
14 MAY 1999
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
There is before the Court an application brought by the Australian Postal Corporation (“Australia Post”) against the respondent, formerly known as Pac-Rim No. 3 Pty Ltd but now known as Pac-Rim Printing Pty Ltd (“Pac-Rim”). That application is brought pursuant to ss 29 and 31 of the Australian Postal Corporation Act 1989 (Cth) (“the Act”). Those sections are contained within Div 2 of Pt 3 of the Act. That Division is headed “Reserved services”, and came into effect, in its present form, on 5 December 1994.
It is necessary to set out the relevant parts of ss 29, 30 and 31 of the Act. They are as follows:
“Services reserved to Australia Post etc.
29. (1) Subject to section 30, Australia Post has the exclusive right to carry letters within Australia, whether the letters originated within or outside Australia .
(2) The reservation of services to Australia Post under subsection (1) extends to:
(a)the collection, within Australia, of letters for delivery within Australia ; and
(b)the delivery of letters within Australia .
…
Exceptions to reserved services30. (1) The reserved services do not include any of the following:
(a) the carriage of a letter weighing more than 250 grams unless the letter consists of an envelope, packet, parcel, container or wrapper containing 2 or more separate letters;
(b) the carriage of a letter relating to goods that is sent and delivered with the goods;
(c) the carriage of a newspaper, magazine, book, catalogue or leaflet, whether or not directed to a particular person or address and whether or not enclosed in any sort of cover;
(d) the carriage of a letter otherwise than for reward;
(e) the carriage of a letter within Australia for a charge or fee that is at least 4 times the then rate of postage for the carriage within Australia of a standard postal article by ordinary post;
…”
Actions for infringement of reserved services etc.
31. (1) Where a person has engaged, or is proposing to engage, in conduct that involves, or would involve, an infringement of Australia Post's exclusive right to undertake the reserved services, Australia Post may apply to the Federal Court for relief.
(2) The relief that may be granted includes an injunction and, at the option of Australia Post, either damages or an account of profits.
(3) Where, in the opinion of the Federal Court, it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1).
(4) The power of the Federal Court to grant an injunction restraining a person from engaging in conduct may be exercised:
(a)whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind;
(b)whether or not the person has previously engaged in conduct of that kind; and
(c)whether or not there is imminent danger of substantial damage to Australia Post if the person engages in conduct of that kind.”
Australia Post claims that Pac-Rim has engaged in “the collection, within Australia, of letters for delivery within Australia” and “the delivery of letters within Australia” contrary to s 29 of the Act. It seeks declaratory and injunctive relief against Pac-Rim. Pac-Rim denies having contravened s 29 of the Act. It claims that the articles which it collected, and delivered, were “leaflets” within the meaning of s 30(1)(c) of the Act and, accordingly, did not come within the services reserved to Australia Post.
The basic facts are not in dispute. Australia Post is a statutory corporation capable of suing and being sued in its corporate name. Pac-Rim is the proprietor of a business known as “Streetfile”, and carries on business under that name or style. Streetfile is involved in the business of printing, addressing and delivering advertising material.
In or about May 1998, Pac-Rim carried or delivered, or caused to be carried or delivered, certain articles which Australia Post contends are “letters” within the meaning of that term as defined in s 3 of the Act. The term “letter” is defined in s 3 as meaning:
“… any form of written communication that is directed to a particular person or address, and includes:
(a)any standard postal article;
(b)any envelope, packet, parcel, container or wrapper containing such a communication; and
(c)any unenclosed written communication that is directed to a particular person or address;”
The term “standard postal article” is also defined in s 3 of the Act, essentially in terms of size and weight. There is no dispute between the parties as to the articles in question being “standard postal articles”.
The articles which Australia Post contends are “letters” as defined in s 3 are written communications said to have been directed to particular persons at particular addresses. These written communications consist of:
·ITEM (a) – a single folded sheet of paper which is printed upon both sides, and takes the following form:
· ITEM (b)- an advertising brochure which is in the following terms:
·ITEM (c) – an envelope which contained both the single folded sheet of paper, and the advertising brochure, and which set out the logo of Golden Casket, together with a freecall telephone number, and a return address in the event that the envelope and its contents could not be delivered.
Australia Post’s contentions
Mr Derham QC, who appeared with Mr Almond on behalf of Australia Post, submitted that the evidence established that Pac-Rim, by carrying or delivering, or causing to be carried or delivered, each of the items set out above had carried or delivered “letters” (within the meaning of that term in s 3 of the Act). Given the extensive definition of “letter” contained within that section, this contention is obviously correct. I did not understand it to be challenged.
Mr Derham conceded that one of the items carried and delivered by Pac-Rim, namely item (b), was a “leaflet” within the meaning of that term in s 30(1)(c) of the Act. The carriage of that item did not, therefore, fall within the reserved services, and did not contravene s 29 of the Act. He submitted, however, that item (a) was not relevantly a “leaflet”, and could not therefore be carried or delivered by anyone other than Australia Post.
It seems clear that item (c), the envelope containing items (a) and (b), could not, on any view, be a leaflet. If items (a) and (b) are “letters” within the extended meaning of that term in s 3, it would follow from the definition of “letter” contained therein that item (c) would also be deemed to be a letter. It would also follow that item (c) could not be carried or delivered by anyone other than Australia Post, even if it contained within it items which were plainly leaflets.
Mr Derham did not, however, put his case for injunctive and declaratory relief upon that limited, and quite artificial, basis. He based his claim to the relief sought upon the contention that item (a), while certainly a “letter”, was not in any relevant sense a “leaflet”, and did not, therefore, come within the reserved services. I need not, therefore, consider whether or not there is a contravention of the Act if a leaflet is enclosed within an envelope which is carried or delivered by someone other than Australia Post.
Mr Derham submitted that item (a) was not a “leaflet” within the meaning of that term in s 30(1)(c) for the following reasons:
·Item (a) would not, in ordinary parlance, be regarded as a “leaflet”.
·Item (a) had all of the hallmarks of what would be regarded, in the traditional sense, and without any reference to the expanded meaning of that term in s 3 of the Act, as a “letter”. A “letter” in the traditional sense could not, for the purposes of the Act, also be a “leaflet”.
·Although an article could be a “leaflet” pursuant to s 30(1)(c) of the Act notwithstanding the fact that it was directed to a particular person or address, item (a) was not simply so directed. It was, rather, directed to a particular person or address by reason of certain criteria applicable to that person, and set out in item (a) itself. These criteria included that the person to whom item (a) was addressed had played the relevant Golden Casket games with that person’s “new Winners Circle card”. Using such criteria as the basis for choosing the addressee rendered item (a) personal rather than impersonal, and took it outside the ambit of a “leaflet” as described in s 30(1)(c) of the Act.
·The language employed in item (a) was personal in style. It utilised the term “you” throughout. The use of such language was not, in context, indiscriminate, but directed to a particular customer identified by reference number, name, and address. The style employed was not consistent with that typically utilised in a “leaflet”, but rather that utilised in a “letter” in the traditional sense.
·Although enclosures such as item (a) were widely disseminated, having been distributed to a large but indeterminate number of persons (within a broader category of over 417,000 residents of Queensland each of whom received something akin to item (a) or, if they were not holders of a “new Winners Circle card”, a variant thereof designed to meet their own particular situation), they had, nonetheless, been targeted at specific individuals. These were persons who met the criteria for receiving that item. It had not been disseminated to the public at large, or in a sufficiently general and impersonal manner to constitute a “leaflet”.
Pac-Rim’s contentions
Mr Pagone QC, who appeared with Mr Chan for Pac-Rim, conceded that each of items (a), (b) and (c) were relevantly “letters” within the meaning of that term in s 3 of the Act. The extended, and quite artificial, meaning given to that term in that section made this concession inevitable.
Mr Pagone submitted that item (a), although a “letter” for the purposes of the Act, was also a “leaflet” within the meaning of that term in s 30(1)(c) of the Act. Accordingly, Pac-Rim was entitled to carry or deliver that item.
Australia Post had properly conceded that item (b) was relevantly a “leaflet” within the meaning of the Act. It followed, therefore, that each of items (a) and (b) could be carried or delivered by Pac-Rim within item (c), the envelope which contained them, without contravening s 29 of the Act.
Mr Pagone relied upon the following contentions in support of his submission:
·the fact that a particular item constitutes a “letter” within the meaning of that term in s 3 of the Act does not mean that it does not also constitute a “leaflet” within the meaning of that term in s 30(1)(c) of the Act.
·the term “leaflet” should be given a broad interpretation, consistent with the ordinary, natural and contemporary usage of that term.
·item (a) had all of the essential characteristics of a “leaflet”. These included its size, the medium upon which it was printed and its purpose – namely advertising.
·considerations of substance, rather than form, suggested that item (a) should be characterised as a “leaflet”. Although it employed, as part of its advertising technique, some of the forms traditionally ascribed to a letter, it could not, sensibly, be regarded as a “letter”.
·the fact that item (a) was directed to members of a discrete, and readily ascertainable, class did not prevent it from having the essential characteristics of a “leaflet”. The membership of the class to which it was directed was sufficiently wide to enable it to be said that it was intended as a form of mass communication, akin to a newspaper, magazine, book, or catalogue - the other items within s 30(1)(c) of the Act.
The general approach to ascertaining the meaning to be accorded to the term “leaflet” in s 30(1)(c)
The meaning to be accorded to the term “leaflet” in s 30(1)(c) of the Act requires recourse to be had to a number of aids to construction. These include the history of the legislation and the background to the amendment in December 1994 which introduced s 30(1)(c) in its present form. Recourse may also be had to the extrinsic material to which the Court may properly have regard in construing s 30(1)(c).
Consideration must be given to the structure and text of the relevant provision, and to the structure of the Act as a whole. The objectives underlying the legislation must be identified. The relevant provision must, in accordance with s 15AA of the Acts Interpretation Act 1901 (Cth), be construed purposively. Regard may be had to the ordinary and natural usage of the term “leaflet”, as expounded in various dictionaries and other reference works. Intrinsic or grammatical aids to interpretation may also be taken into account, including a number of what are described by DC Pearce and RS Geddes in Statutory Interpretation in Australia (4th ed) 1996 at 98 as “syntactical presumptions”. These are often expressed as Latin maxims.
The purpose or object underlying the Act
The starting point must be to give effect to s 15AA of the Acts Interpretation Act 1901 (Cth). This section provides:
“Regard to be had to purpose or object of Act
15AA. (1) In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.”
It is necessary to ascertain the principal objectives underlying the Act. Part 3 of the Act is headed “Australia Post’s Obligations and Reserved Services”. Division 1 of that part sets out Australia Post’s “Obligations”. The following provisions are relevant:
“Obligations generally
25. Australia Post has the following obligations:
(a) its commercial obligation under section 26;
(b) its community service obligations under section 27;
(c)its general governmental obligations under section 28.
Commercial obligation
26. Australia Post shall, as far as practicable, perform its functions in a manner consistent with sound commercial practice.
Community service obligations
27.(1) Australia Post shall supply a letter service.
(2)The principal purpose of the letter service is, by physical means:
(a) to carry, within Australia, letters that Australia Post has the exclusive right to carry; and
(b) to carry letters between Australia and places outside Australia.
(3)Australia Post shall make the letter service available at a single uniform rate of postage for the carriage within Australia, by ordinary post, of letters that are standard postal articles.
(4)Australia Post shall ensure:
(a) that, in view of the social importance of the letter service, the service is reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and
(b) that the performance standards (including delivery times) for the letter service reasonably meet the social, industrial and commercial needs of the Australian community.
(5) In this section:
"Australia" includes Christmas Island and Cocos (Keeling) Islands, but does not include any other external Territory to which this Act extends.General governmental obligations
28. Australia Post shall perform its functions in a way consistent with:(a)any general policies of the Commonwealth Government notified by the Minister under section 48;
(b) any directions given by the Minister under section 49; and
(c) Australia's obligations under any convention.”
As noted earlier, Div 2 of Pt 3 sets out the services reserved to Australia Post and the exceptions to those reserved services.
Australia Post is given what amounts to a monopoly in relation to the carriage of letters within Australia. That monopoly has been legislatively enshrined in order to compensate Australia Post for the requirement that it make available the letter service which it is obliged to provide at a single uniform rate of postage for the carriage within Australia, by ordinary post, of letters that are standard postal articles. There can be no doubt that some postal deliveries are carried out uneconomically in furtherance of this community service obligation. One form of compensation for requiring that community service obligation to be met is the grant pursuant to s 29(1) of the Act of the exclusive right to carry letters within Australia.
One may also discern from the structure of the Act that the term “letter” was intended to be given an extremely wide definition, far beyond the scope of any ordinary meaning of that term. At the same time, however, there are limits upon the width of the protection afforded to Australia Post – these are to be found in the exceptions to the reserved services contained in s 30(1) of the Act. It is the scope to be accorded to one such exception which lies at the heart of the present dispute before the Court.
The history of the relevant provision
In its original form prior to 5 December 1994, s 30(1)(c) of the Australian Postal Corporation Act 1989 read as follows:
“(1) The services reserved to Australia Post do not include:
…(c)the carriage of newspapers, magazines, books, catalogues and leaflets;”
…”
The Explanatory Memorandum prepared in relation to the Australian Postal Corporation Bill 1989, in its original form, states:
“In redefining the functions and powers of Australia Post, the Bill imposes the following obligations on Australia Post:
·commercial;
·community service; and,
·general governmental.
This Bill requires Australia Post to perform its functions in a manner consistent with sound commercial practice.
Australia Post’s statutory Community Service Obligations (CSOs) are described as the provision of a letter service available at a single uniform rate of postage for carriage within Australia, by ordinary post, of letters that are standard postal articles.
A general requirement to comply with Governmental obligations is also imposed, in accordance with notifications of general policies under section 48, directions under section 49 and Australia’s obligations under any convention.
The right to carry letters within Australia and between Australia and overseas is reserved to Australia Post in recognition of the CSOs imposed on Australia Post. Australia Post is empowered to take action in the Federal Court for relief where a person engages in, or proposes to engage in, the provision of reserved services.
Exceptions to reserved services are allowed for in the Bill, and a regulation making power is available to enable further exceptions to be made if appropriate. …
Australia Post’s protection from action is to be limited to the provision of the reserved letter service …”
Later in the Explanatory Memorandum, the commentary in relation to Cl 30 addressed a number of the proposed exceptions to reserved services, but said nothing about proposed Cl 30(1)(c).
After 5 December 1994 s 30(1)(c) was amended by the Australian Post Corporation Amendment Act 1994 (No 142 of 1994). As noted earlier, it now provides:
“(1) The reserved services do not include any of the following:
…(c)the carriage of a newspaper, magazine, book, catalogue or leaflet, whether or not directed to a particular person or address and whether or not enclosed in any sort of cover;
…”
The historical background to this amendment is illuminating. The Government originally proposed that s 30(1)(c) be amended by omitting par (1)(c), and substituting the following paragraphs:
“(c) the carriage of a newspaper, magazine or book;
(ca) the carriage of identical catalogues or leaflets in relation to which one of the following conditions is satisfied:(i)none of the catalogues or leaflets is enclosed in any sort of cover;
(ii)each of the catalogues or leaflets is enclosed in a cover (whether opaque or transparent), but none of them is directed, by writing on the cover, to a particular person or address;
(iii)each of the catalogues or leaflets is enclosed in a transparent cover and is directed, by writing on, or visible through, the cover, to a particular person or address.” (emphasis added)
The Government Bill was amended in the Senate, largely as a result of concerns expressed by Senator Bourne on behalf of the Australian Democrats. Senator Bourne moved that the proposed pars 30(1)(c) and (ca) be omitted from s 30, and that the following paragraph be substituted:
“(c)the carriage of a newspaper, magazine, book catalogue or leaflet, whether or not directed to a particular person or address and whether or not enclosed in any sort of cover;”
It seems from the debates that Senator Bourne was concerned that the original amendments proposed by the Government would permit catalogues or leaflets enclosed in a transparent (ie plastic) cover to be carried by a body other than Australia Post, but would not permit such items to be carried if they were enclosed in a less environmentally threatening cover, such as an envelope.
It is interesting to note that the amendment to s 30(1)(c) of the Act, brought about by Senator Bourne’s concern to avoid encouraging the use of plastic as a means of packaging catalogues and leaflets, has by inserting the expression “whether or not directed to a particular person or address” had the unintended effect of creating difficulty in the construction of the relevant provision.
The Explanatory Memorandum which was originally prepared for the Australian Postal Corporation Amendment Bill 1994 stated that:
“The Bill implements the Government’s reform package for Australia Post that was announced on 15 November 1993, and responds to the Industry Commission Report on the Efficiency of Mail, Courier and Parcel Service Industries.”
It continues:
“The first group of amendments covers postal industry arrangements:
…·amendments to Australia Post’s obligations and reserved services (Part 3 of the Act) to give effect to the Government’s decisions to expose Australia Post to further competition.”
The Explanatory Memorandum deals with the amendments to s 30 of the Act. It states:
“Clause 11(a) amends subsection 30(1) of the Act to ensure consistency in terminology by use of the term “reserved service”, which is defined in the amendments made by clause 4.
The other amendments in this clause alter or clarify the exceptions to the reserved service.
The effect of the amendment to paragraph 30(1)(a) made by clause 11(c) is to allow persons other than Australia Post to deliver letters which weigh 250 grams or more, whereas the existing specified weight is 500 grams. (This exception does not extend to letters that have been consolidated into one package that weighs more than 250 grams.)
The effect of new paragraph 30(1)(c), inserted by clause 11(d), is to remove catalogues and leaflets from the exception listed in paragraph 30(1)(c) of the Act. (The carriage of newspapers, magazines and books, would continue to be excepted from the services reserved to Australia Post).
New paragraph 30(1)(ca), inserted by clause 11(d), provides that the carriage of the following kinds of identical catalogues and leaflets are not included in the carriage services reserved to Australia Post:
·unenclosed catalogues or leaflets;
·enclosed catalogues or leaflets which are not addressed to a particular person or address; or
·catalogues or leaflets which are enclosed in a transparent cover and directed to a particular person or address.”
The Explanatory Memorandum was prepared prior to the amendments introduced by Senator Bourne, and ultimately accepted by the Government. It is therefore of limited assistance in construing the section as it was ultimately enacted.
What emerges clearly from the parliamentary debates is that it was not intended by the 1994 amendments to s 30(1)(c) of the Act to alter, in any substantive way, the scope of the services reserved to Australia Post, or the relevant exception contained in the provisions. Democrat Senator John Woodley noted:
“There is a potential grey area between the definitions of a letter and a leaflet. But that grey area is not created by my amendment; it already exists in the act and the bill. Ultimately, it is up to the Federal Court to clarify the distinction.”
The 1994 amendments were, however, intended, in general, to reduce the protection given to Australia Post, and to increase competition generally.
The enactment of the Australian Postal Corporation Act 1989 introduced a raft of reforms designed to bring the supply of postal services more into line with commercial practice. The Industry Commission in 1992, in its Report No 28 Mail, Courier and Parcel Services, made a range of recommendations covering Australia Post’s performance, its community service obligations, competition and structural reform. The Commission recommended a reduction in the protection given to Australia Post, thereby increasing the competitive pressure on the Corporation.
In 1994 the Government enacted the Australian Postal Corporation Amendment Act, which implemented a number of the reforms recommended by the Industry Commission. These amendments reaffirmed the Government’s social objective of making a letter service available to all Australians at a uniform postage rate, while making changes to the reserved services.
The amendments provided for greater competition in the letter market by reducing the reserved services, and in particular reducing the weight limit from 500 grams to 250 grams. Additional exemptions from the reserved services were also given. The new exemptions included the operation of document exchanges, and the carriage of letters within organisations.
There is, however, considerable debate about what is, and what is not, covered by the exceptions to the reserved services.
The National Competition Council Report of February 1998
In its review of the Australian Postal Corporation Act, the Final Report (Volume 2) of the National Competition Council, February 1998, the Council states (at 89):
“The changes to the Act did result in increased competition. However, in the Council’s view further changes are necessary to remove uncertainty and promote competition. Competitors in the mailing industry have complained that there are too many grey areas in the legislation and that Australia Post exploits its monopoly in the reserved service area by threatening legal action in the courts.
The Council recognises that legislation enshrining a monopoly in a dynamic messages market will always suffer problems at the fringes from competitors attempting to capture market share in non-reserved areas of the market and the monopolist attempting to minimise that competition.”
The Council in its Final Report noted that in Australian Postal Corporation v Streetfile Pty Ltd (unreported, 6 November 1996) Northrop J considered s 3 of the Act and the reserved services. In that case Australia Post sought an injunction and an account of profits against Streetfile Pty Ltd for the delivery of CD packs. Streetfile admitted that “it engaged in conduct that involved an infringement of Australia Post’s exclusive right to undertake the reserved services”. It claimed, however, that some of the CD packs in question did not fall within the reserved services because they were “leaflets” within the meaning of s 30(1)(c) of the Act.
Justice Northrop said that the proper construction and application of s 30(1)(c) “gives rise to difficulties”. His Honour rejected Streetfile’s submission that some of the CD packs came within the exception in s 30(1)(c). His Honour found that it was difficult to distinguish between the two types of CD packs. The meanings of the various sections of the Act were not the subject of findings by the Court (although Northrop J did refuse to grant the injunction sought by Australia Post).
The Council noted in its Report that the principal criticism of the letter definition and the reserved services provisions has been that they are unclear, and lead to uncertainty. The meaning given to the term “letter” is extraordinarily wide. The Act has failed adequately to define what are “leaflets”, and what are “goods”. It appears from the Council’s Final Report that Streetfile had submitted that the reserved services provisions should be repealed and that, in the interim, business mail should be excluded from those reserved services. In its submission, Streetfile said (at 91):
“In the past two years the Corporation has threatened Streetfile and its parent, PMP, numerous times and launched Federal Court action seven times.
While lobbing litigation at competitors from behind the protection of the Act, Australia Post also spends a great deal of time and resources over the past two decades successfully widening the legislative definition of a “letter” to ensure the greatest revenue and least competition …”
Justice Northrop’s view that s 30(1)(c) was obscure received support in Australian Postal Corporation v Pac Rim No 3 Pty Ltd (1998) 79 FCR 241 where Marshall J observed (at 247):
“It is not until one examines the Senate Debates referred to in these reasons that s 30(1)(c) of the Act is capable of being properly understood. On the face of s 30(1)(c) there is room for confusion and genuine differences of opinion as to its meaning. … Therefore, whilst the breach of the Act is not to be excused lightly, the breach must be viewed against a lack of legislative clarity.”
It is interesting to note that in its submission to the Council, Australia Post itself accepted that there was confusion about the definition of “leaflet” in s 30(1)(c). The Council in its Report noted the Australia Post submission in the following terms:
“One area of contention that has arisen is a consequence of the inclusion of the “leaflet” in the list of exclusions in Section 30(1)(c). This amendment, made in 1995 (sic), was intended to aid clarity but because the term leaflet itself was not defined there has been some confusion. This would be assisted if the words “(not in the form of personal correspondence)” were appended to the reference to leaflet in Section 30.”
It is ironic that the amendment proposed by Australia Post (“not in the form of personal correspondence”) is itself dangerously ambiguous. Does the term “form” mean “utilising the customary forms of personal correspondence”? Or does it mean excluding from the category of “leaflet” anything which is capable of being regarded as “personal correspondence”. If the former interpretation is what is intended by Australia Post, the only limitation upon the “leaflet” exception is where the forms of a traditional letter are used in that leaflet. If the latter interpretation is what is intended, there would be a need to explore more fully the nature of each communication with a view to seeing whether it is, in substance, “personal correspondence”.
The dictionary definitions and other established usages of the term “leaflet”
The dictionary definitions of the term leaflet are of some assistance. A Macquarie Dictionary 3rd edition (1997) definition is:
“A small flat or folded sheet of printed matter, as for distribution.”
An Oxford English Dictionary 2nd edition (1989) definition is :
“A small-sized leaf of paper or a sheet folded into two or more leaves but not stitched, and containing printed matter, chiefly for gratuitous distribution.”
The first recorded use of the term “leaflet” in that sense (according to the Oxford English Dictionary, above) was in 1886. The Quarterly Review spoke of “a generous gift of Liberation leaflets for home use and distribution among the neighbours”. Mr CA Vince MA was described as the chief leaflet writer to Mr Chamberlain in the Westminster Gazette of 13 August 1903. There is also reference to leaflet raids over Berlin during the Second World War.
The Australian Concise Oxford Dictionary of Current English 3rd edition defines leaflet as:
“A sheet (usu. printed) paper (sometimes folded but not stitched) giving information, esp. for free distribution”.
The New Oxford Dictionary of English (1998) defines leaflet as:
“A printed sheet of paper, sometimes folded, containing information or advertising and usually distributed free.”
The term “leaflet” is to be found in Words and Phrases Legally Defined as including any written information – Medicines Act 1968, s 132(1). It is not to be found in any legal dictionary. Nor does it appear in any index to Words and Phrases Judicially Considered in Australia.
The meaning to be accorded to the term “leaflet” has been considered from a legal point of view only once in any detail, so far as I am aware. That was in a totally different context, in the Administrative Appeals Tribunal in Case 48/96 96 ATC 470. There the issue was whether a particular circular was a “leaflet”. Its characteristics as a “leaflet” had sales tax implications.
A Senior Member of the Tribunal, Senior Member Block, concluded that the circulars under consideration were not relevantly “leaflets”. He observed at 475-6:
“(a) The term “leaflet” is, in my view, correctly described in the dictionaries previously referred to as a single sheet; it is perhaps relevant that the very term is itself a diminutive. Moreover a leaflet is not, in my view, the same as a booklet; the latter term connotes something longer than the former term. The term “leaflet” could relate to a single sheet folded into a wider single sheet, as occurs with instruction sheets for certain electronic equipment, and nevertheless remains a single sheet. Accordingly two or more sheets stapled together would not on this view constitute a leaflet. It is relevant to note that paragraph 8 of the decision in Case 57/95 focussed on the fact that “each individual sheet is a leaflet”.
(b) As important though is that, in my view, a leaflet is something which in ordinary parlance is freely and publicly available. The term “leaflet” connotes an item sent through the post or deposited in a mailbox or handed out on the street; it will generally be free, and it will be public in the sense that it is made available to the public or a section of it. Thus an advertising leaflet (and a leaflet will often be an advertisement) for a plumber in Rose Bay in the Eastern suburbs of Sydney might be deposited in the letterboxes of residents of that suburb or of a wider area, and perhaps including other Eastern suburbs of Sydney, but quite possibly not the whole of Sydney.
(c) The circular letters considered in this matter are not (even where they consist only of one page) correctly characterised as leaflets. On the contrary they are despatched by post to member clubs whose membership subscriptions entitle them, amongst other things, to receive the circulars by way of information and to enable them to build up (if so desired) folders containing that information. The circulars are in reality circular letters even though they do not commence with a salutation. Nearly all of them end with a reference to the issuing officer, and are couched in terms which might reasonably be expected in a circular letter. Although some circular letters consist of one page only (and on occasions more than one circular letter was despatched on the same day) many are more than one page in length; relevant information was contained, on many occasions in annexures. The thrust of most of them is towards the giving of information to member clubs, although, as set out previously, some were in the nature of information-seeking exercises. When considered as to their essential character, the term “leaflet” is in my view, altogether inappropriate.”
It is interesting to note that in Roget’s Thesaurus the term “leaflet” appears under the general heading “publication” and in company with terms such as handbill, pamphlet, brochure, open letter, and newsletter.
The process of statutory construction
The language of s 30(1)(c) is neither clear, nor unambiguous.
In CPH Property Pty Limited v Commissioner of Taxation [1998] ATC 4983 Hill J stated (at 4995-4996):
“In general terms it may be said that the task of statutory construction is to expose the meaning of the words which Parliament has enacted. This is reflected in the so-called “golden rule” of interpretation of Lord Wensleydale: Grey v Pearson (1857) 6 HLC 61 at 106; 10 ER 1216 at 1234. So it will generally be the case that the Court will give to legislation the ordinary grammatical meaning which it bears. As Gibbs CJ reminded us in Cooper Brookes (Wollongong) Pty Ltd v FC of T 81 ATC 4292 at 4296; (1980-1981) 147 CLR 297 at 304:
“ … it is not unduly pedantic to begin with the assumption that words mean what they say.”
However, it must likewise be said that even without provisions such as ss 15AA and 15AB of the Acts Interpretation Act 1901, it is fundamental that the statutory construction proceed to give effect to the manifest or expressed intention of Parliament. As McHugh J pointed out in CAC of NSW v Yuill & Ors (1991) 9 ACLC 843 at 861; 65 ALJR 500 at 511 the literal or grammatical meaning may not be the meaning which Parliament intended to enact. Hence there will be a need to depart from the literal meaning where there is good reason so to do: Cooper Brookes at ATC 4306; CLR 321. As Mason and Wilson JJ there said:
“…It [ie the propriety of departing from a literal interpretation] extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.”
In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408, Brennan CJ, Dawson, Toohey and Gummow JJ said:
“… the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363 at 388, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.””
The legislative history which underlies the enactment of the Australian Postal Corporation Act 1989, and its amendment in December 1994, provides no clear answer to the present dispute concerning the meaning of the term “leaflet” in s 30(1)(c) of the Act. Nor does resort to the extrinsic materials to which reference may be made.
There is nothing intrinsically absurd about giving the term “leaflet” an expansive meaning so that a document such as item (a) would fall within the terms of that expression. Equally, it is not intrinsically absurd to give the term “leaflet” a narrower meaning which would have the effect of excluding item (a) from its purview. It is necessary to turn, therefore, to other aids to construction in order to determine the meaning of this term for the purposes of resolving the present application before the Court.
The maxim noscitur a sociis
One maxim which seems to be of particular relevance in determining the meaning of the term “leaflet” in s 30(1)(c) of the Act is noscitur a sociis – the meaning of a word or phrase is to be derived from its context. A word of wide possible connotation may be limited by the context in which it appears – see generally F Bennion, Statutory Interpretation (3rd ed) 1997 at 949-954.
In Prior v Sherwood (1906) 3 CLR 1054 the High Court held that a prohibition against bookmaking in any “house, office, room or place” did not extend to a public lane. The wide possible meaning that could have been attributed to the word “place” was limited by its use in conjunction with “house”, “office” and “room”, which words the Court considered denoted an enclosed or definable area.
Similarly, in R v Refshauge (1976) 11 ALR 471 at 475 the word “qualifications” appeared in a section relating to the registration of medical practitioners. The context in which the word appeared was “qualifications, experience and standing in the medical profession”, and Gibbs J (with whom the other members of the Court agreed) held that in such context, the word ‘qualifications’ referred to academic qualifications, and did not have the wider meaning of personal qualities or accomplishments.
See also Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 376 per Toohey and Gaudron JJ, and Federal Commissioner of Taxation v Applegate (1979) 27 ALR 114 at 116 per Franki J, 123 per Northrop J, and 127 per Fisher J.
For an example of the use of this maxim in England as indicating not that a restriction is intended of the literal or usual meaning, but rather that a less usual meaning is to be adopted, see Abrahams v Cavey [1968] 1 QB 479 (the word “indecent” in the context of a statute which penalised “riotous, violent or indecent behaviour” in churches and churchyards did not have its usual sexual connotation but, because of the surrounding words, referred to the indecency of creating a disturbance in a sacred place).
In Letang v Cooper [1965] 1 QB 232 at 247 Lord Diplock uttered a note of caution:
“The maxim noscitur a sociis is always a treacherous one unless you know the societas to which the socii belong.”
The Latin word “societas” means “society”. The nature of the intended society (if any) can only be gathered from the words used. There may not be any precise intention, but the “colour” of members of the society is nevertheless an approximate indication of meaning – see F Bennion (supra) at 950.
Conclusion
It seems to me that the term “leaflet” has no fixed meaning, but rather takes its colour from the context in which it is to be found. It is neither a technical term, nor a term of art. That is not to say that it lacks a central core of settled meaning, or an “essential character” – Commissioner of Taxation v Thomson Australian Holdings Pty Ltd (1989) 25 FCR 481 at 486. The dictionary definitions set out earlier provide considerable assistance in describing, if not defining, the primary attributes of a “leaflet”. (Whether or not “leaflet” has a “Platonic essence” as well, in the sense described by Gummow J in Netcomm (Australia) Pty Ltd v Dataplex Pty Ltd (1988) 81 ALR 101 at 106, I leave to others better qualified than I to determine.) As one moves away from that central core of settled meaning there is clearly a wide penumbra of doubt and uncertainty as to the full scope of this term.
The words which immediately precede the term “leaflet” in s 30(1)(c) of the Act are “newspaper”, “magazine”, “book” and “catalogue”. The combination of the term “leaflet” with these other words seems to me to have a narrowing effect. Each of these other terms involves an impersonal form of written communication, directed to the public at large, or a target audience which is undifferentiated in any formal sense, either within the means of communication itself, or otherwise.
While item 1(a) is certainly capable of being regarded as a “leaflet” in the widest sense of that term, the term “leaflet” is not, in my view, used in that widest sense in s 30(1)(c) of the Act. It is used, rather, to signify a form of written communication that is wholly impersonal, and not directed to a discrete group, however large, of individuals who meet certain designated criteria.
The expression “whether or not directed to a particular person or address” in s 30(1)(c) was intended, when introduced in 1994, to permit such impersonal communications to be directed to particular persons or addresses. It was not, in my opinion, intended to permit communications of a personal, discrete and differentiated nature, albeit directed to large numbers of individuals, to come within the exception to the reserved services.
I have come to the conclusion that item (a) is not relevantly a “leaflet” within the meaning of that expression in s 30(1)(c) of the Act because its character is different from the entirely impersonal communications normally contained in “newspapers”, “magazines”, “books” and “catalogues”. Item (a) is addressed to a specific class of person, identified by customer reference number, name, and address. The members of the class are those who have played Golden Casket games with their “new Winners Circle card”. It is not a wholly impersonal communication addressed at large to anyone who happens to receive it.
Item 1(b), on the other hand, is plainly a “leaflet” within the meaning of that term in s 30(1)(c) because it is expressed in language which is of general application. It does not purport to link its contents in any way to the particular situation of the person who receives it. The fact that the term “you” appears in item (b) does not alter its general character. The “you” in item (b) is not used in any personal sense.
I should emphasise that I am not disposed to find that item (a) is not a “leaflet” merely because it adopts some, though not all, of the forms of what is described as a “letter, in the traditional sense”. Whether or not such forms are utilised seems to me to matter little in the context of the operation of s 30(1)(c). The absence of a salutation in item (a) does not make it a “leaflet”. The presence of a salutation would not prevent item (a) from being a “leaflet” if all the other indicia required to make it a “leaflet” were in existence. It is plain that the term “letter” as defined in s 3 of the Act is wide enough to encompass all of the items which fall within s 30(1)(c) – there would be no reason to include those items in the exceptions to the reserved services if they did not otherwise fall within the reserved services.
An impersonal communication can take the form of a letter. Mr Pagone was entirely correct to remind me that there are examples of books which follow that form. His erudition produced Montesquieu’s satire “Persian Letters” which I confess to having scanned briefly, but not read, for the purpose of preparing this judgment. Such works would plainly come within the exception to the reserved services though written in the style of a “letter”, in the traditional sense. The distinction between such works and item (a) is that item (a) is not a communication at large, but one which is personalised to some degree, and targeted to a particular addressee, based upon criteria which the recipient of that communication happens to meet.
I am fortified in my view that the term “leaflet” in s 30(1)(c) of the Act was intended to be construed in this manner by the fact that the original amendment to the section contained in the Government Bill included a requirement that the “catalogues” or “leaflets” which were to fall outside the scope of the reserved services be “identical”. “Newspapers”, “magazines”, “books”, and “catalogues” generally share that characteristic. Plainly item (a) would not be identical with all other articles of this type carried or delivered. It is directed to a particular class of individual, and bears upon its face the customer reference number, name and address of the person to whom it is directed in circumstances where that person falls within that class of individual.
The omission of the word “identical” from the final form of the amending Act was, in all probability, an unintended consequence of the last minute amendments introduced in the Senate. It may be that insufficient care was taken to ascertain the possible implications of these amendments. It is instructive to note, however, that at p 2017 of the parliamentary debates on 19 October 1994 Senator Bourne commented:
“Our amendments also remove the bundling provision and the definition of identical catalogues and leaflets on the grounds that they are redundant. The government believes that the laser etching of addresses onto catalogues and leaflets should and would be allowed.”
That comment suggests that the requirement originally contained in the Government Bill that articles which are widely disseminated be “identical” (apart from the individually attached addresses which are not chosen upon the basis of any discriminating factor contained within those articles) was considered to be fundamental to the notion of a “leaflet” as it appeared in s 30(1)(c) of the Act. The amended version of the Act did not, in my opinion, alter that conception of this particular exception to the reserved services.
I propose to grant the declaratory relief sought by Australia Post. That relief will take the form of a declaration that Pac-Rim has engaged in conduct in contravention of s 29 of the Australian Postal Corporation Act 1989 by carrying or delivering, or causing to be carried or delivered, within Australia, item (a).
I do not believe that it is appropriate to grant the injunctive relief sought. I am not persuaded that Pac-Rim has contravened the relevant section intentionally, recklessly, or even negligently.
The interpretation which I have given to the term “leaflet” in s 30(1)(c) is plainly one as to which reasonable minds may differ. There is nothing to indicate that the respondent will, in future, contravene the Act by delivering material which is similar to that which has given rise to these proceedings. Past contraventions in the context of legislation drafted with such imprecision as this do not, in my opinion, provide any proper foundation for the grant of injunctive relief.
I am conscious of the fact that the Court has power to grant an injunction restraining a person from engaging in conduct of the kind that involves or would involve an infringement of Australia Post’s exclusive right to undertake the reserved services whether or not it appears to the Court that the person intends to engage again, or continue to engage, in conduct of that kind – s 31(4). Nonetheless, I would not regard it as a proper exercise of my discretion to grant injunctive relief in the particular circumstances of this case.
For the reasons set out above, the application must be allowed. The respondent should pay the applicant’s costs of the application.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.
Associate:
Dated:
Counsel for the Applicant:
Mr DMB Derham QC and Mr P Almond
Solicitor for the Applicant:
Holding Redlich
Counsel for the Respondent:
Mr G Pagone QC and Mr D Chan
Solicitor for the Respondent:
Dunhill Madden Butler
Date of Hearing:
3 February 1999
Date of Judgment:
14 May 1999