Bannerman v Mildura Fruit Juices Pty Ltd

[1984] FCA 166

Re: RONALD MOORE BANNERMAN AND TRADE PRACTICES COMMISSION
And: MILDURA FRUIT JUICES PTY. LTD.
No. V G97 of 1983
Trade Practices
2 FCR 581 / 55 ALR 367 / (1984) ATPR para 40 - 493

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Davies (2) and Neaves(1) JJ.

CATCHWORDS

TRADE PRACTICES - Notice pursuant to s. 155 of the Trade Practices Act 1974 - Validity of notice - Requirement that notice identify matter that constitutes, or may constitute, a contravention of the Act - Sufficiency of the manner in which matter identified.

Trade Practices Act 1974, ss. 52, 155

Melbourne Home of Ford Pty. Ltd. v. Trade Practices Commission (No. 2) (1979) 40 F.L.R. 428;

Davenport v. Trade Practices Commission (1983) 47 A.L.R. 505;

W.A. Pines Pty. Ltd. v. Bannerman (1980) 41 F.L.R. 175;

Melbourne Home of Ford Pty. Ltd. v. Trade Practices Commission (1979) 36 F.L.R. 450;

Pyneboard Pty. Ltd. v. Trade Practices Commission (1982) 57 F.L.R. 368;

Chalmers Leask Underwriting Agencies v. Mayne Nickless Ltd. (1983) 57 A.L.J.R. 626.

Trade Practices - Notice pursuant to s. 155 of Trade Practices Act 1974 - Validity of notice - Requirements of contents of notice - Sufficiency of manner in which matter identified - Trade Practices Act 1974 (Cth), ss. 52, 155.

HEADNOTE

A notice given pursuant to s. 155 of the Trade Practices Act 1974 (Cth) must identify the matter that constitutes or may constitute a contravention of the Act in such a way as to enable the recipient therof to perceive the general ambit of the subject matter under investigation, and to ascertain which documents and information he is required to produce in respect thereto. If it does not do so the notice is invalid and the recipient is not obliged to comply with it.

Held (Per Davies J.), that the notice must give to its recipient sufficient information with reasonable clarity to enable the recipient to perceive what are the matters in respect of which the Commission requires information and documents, and to perceive that those matters constitute contraventions or possible contraventions of the Act, and that the information and documents sought are relevant thereto.

Melbourne Home of Ford Pty Ltd v. Trade Practices Commission (No 2) (1979) 40 F.L.R. 428; Davenport v. Trade Practices Commission (1983) 47 A.L.R. 505; W.A. Pines Pty Ltd v. Bannerman (1980) 41 F.L.R. 175; Melbourne Home of Ford Pty Ltd v. Trade Practices Commission (1979) 36 F.L.R. 450; Pyneboard Pty Ltd v. Trade Practices Commission (1982) 57 F.L.R. 368; Chalmers Leask Underwriting Agencies v. Mayne Nickless Pty Ltd (1983) 57 A.L.J.R. 626.

HEARING

Canberra, 1984, May 1, 2; June 21. #DATE 21:6:1984

APPEAL.

Appeal to the Full Court from an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) of a decision of the Chairman of the Trade Practices Commission to serve a notice under the provisions of s. 155 of the Trade Practices Act 1974 (Cth).

K. Handley Q.C. and B. Collins, for the appellants.

F.H. Callaway, for the respondent.

Cur. adv. vult.

Solicitor for the appellants: T. A. Sherman, Acting Commonwealth Crown Solicitor.

Solicitors for the respondent: Weigall & Crowther.

S.W.

ORDER

The appeal be dismissed.

The appellants pay the respondent's costs of the appeal.

Appeal dismissed with costs.

JUDGE1

On 12 October 1982 Mr. R.M. Bannerman, the Chairman of the Trade Practices Commission, ("the Commission") signed a notice pursuant to sub-section 155(1) of the Trade Practices Act 1974 ("the Act") addressed to Mildura Fruit Juices Pty. Ltd. ("the respondent") requiring it to furnish to the Commission certain information and to produce to the Commission certain documents. The notice was subsequently served upon the respondent.

Sub-section 155(1) of the Act, so far as is relevant to this appeal, provides -

"Where . . . the Chairman . . . has reason to believe that a person is capable of furnishing information, producing documents . . . relating to a matter that constitutes, or may constitute, a contravention of this Act . . . a member of the Commission may, by notice in writing served on that person, require that person -

(a) to furnish to the Commission . . . any such information;

(b) to produce to the Commission . . . any such documents;
. . . ".

The notice stated that the Chairman had reason to believe that the respondent -

"is capable of furnishing information and producing documents relating to matters that constitute, or may constitute, contraventions by producers of orange juice drink products in Australia, of -

i. sub-section 52(1) of the Act, namely that companies supplying orange juice products in trade or commerce have engaged or are engaging in conduct that is misleading or deceptive or is likely to mislead or deceive, namely, representing as orange juice and orange juice concentrate, products which do not consist wholly of juice obtained from oranges: and/or representing as orange juice drink and orange juice drink concentrate, products containing a lesser percentage of juice obtained from oranges than that indicated on containers of the products; or

ii. sub-section 53(a) of the Act, namely that companies producing orange juice products, in trade or commerce, in connection with the supply of orange juice, orange juice concentrate, orange juice drink and orange juice drink concentrate, have falsely represented or are falsely representing the products as being of a particular standard, quality, grade or composition; or

iii. section 55 of the Act, namely that producers of orange juice products in trade or commerce have engaged or are engaging in conduct that is liable to mislead the public as to the nature, the manufacturing process, the characteristics or the suitability for their purposes, or the quantity, of products labelled and described as orange juice, orange juice concentrate, orange juice drink and orange juice drink concentrate."

The notice then required the respondent to furnish the information specified in Schedule I to the notice and to produce the documents specified in Schedule II thereto.

The respondent applied to the Court under the Administrative Decisions (Judicial Review) Act 1977 for a review of the decision of the Chairman to serve the notice upon the respondent and sought an order pursuant to section 16 of that Act declaring that it was not obliged to comply with the notice.

The validity of the notice was attacked on a number of grounds. The learned primary judge rejected all of the grounds with which he found it necessary to deal with the exception of the ground that the statement in paragraph i of the notice in relation to "orange juice drink and orange juice drink concentrate" did not properly identify a matter that constitutes, or that may constitute, a contravention of the Act. In relation to this ground of attack his Honour said -

"Apart from any regulation, statute or other relevant instrument, I do not see how it can be likely to mislead or deceive to describe as "orange juice drink" a product if that product is in fact orange juice drink. It would appear to me to be misleading or deceptive conduct to wrongly label the product as containing a greater percentage of orange juice than it in fact did contain but one would think that the question of whether it was orange juice drink would depend upon the amount of orange juice in the product and not what was on the label. That is to say it may be likely to mislead or deceive to call a product "orange juice drink" if it contains only 1 percent of orange juice but it would not be likely to mislead or deceive to call a product "orange juice drink" if it contained 99 percent of orange juice irrespective of what, if any, percentage of orange juice was shown on the label. The question of whether a product is labelled in a manner which wrongly states the percentage of orange juice in it does not appear to be related to the question of whether the product is properly represented as "orange juice drink". This depends on whether the product complies with any relevant statutory definition of "orange juice drink" or if there is no such definition whether in fact it falls within that description.
. . . . . . . . . .
A representation that a product contains a greater percentage of orange juice than it in fact contains may well be a contravention of s. 52(1) but the alleged contravention identified is unrelated to this question but depends on the truth of a representation that the product is orange juice drink. The attempt made by the applicant by telex on 5 November 1982 to get some clarification of the alleged contraventions did not receive a helpful reply. Much of the information required and many of the documents sought relate to orange juice drink and orange juice drink concentrate. I consider that this matter was not properly identified."

The proceedings before the learned primary judge were conducted on the basis that, if the Court held that the notice was invalid in any respect, the Court should not consider whether any part of it was a valid exercise of power. Consequently, his Honour declared that the notice was invalid and that the respondent was not obliged to comply with it.

From this decision the appellants appealed. Following the service of the notice of appeal the respondent gave notice pursuant to Order 52, rule 22(3)(a) of the Federal Court Rules that the respondent proposed to contest those findings of fact and law which the learned primary judge had made adversely to it. However, prior to the appeal coming on for hearing the respondent withdrew that notice. The appeal therefore proceeded only upon the issue whether the notice, in so far as it referred in paragraph i to companies supplying orange juice products in trade or commerce "representing as orange juice drink and orange juice drink concentrate, products containing a lesser percentage of juice obtained from oranges than that indicated on containers of the products" properly identified a matter that constitutes, or may constitute, a contravention of sub-section 52(1) of the Act.

Counsel for the appellants was invited to present an argument that that part of paragraph i of the notice to which reference has been made or, alternatively, the whole of that paragraph, could be excised from the notice without affecting its validity or destroying the requisite relationship between on the one hand the information required to be furnished and the documents required to be produced and on the other the matters stated in paragraphs ii and iii of the notice. Counsel declined the invitation so that the appeal proceeded on the same basis as the proceedings before the learned primary judge, namely that, if paragraph i of the notice did not properly identify a matter within the meaning of that expression in sub-section 155(1) of the Act, the notice was to be regarded as invalid in toto.

Sub-section 155(1) of the Act has been the subject of consideration in a number of decisions of this Court. For the most part those decisions, in so far as they have concerned questions as to the validity of notices issued under the sub-section, have concerned questions other than the sufficiency of the manner in which the notice has identified the matter that is said to constitute, or may constitute, a contravention of the Act. Decisions which have been concerned with the latter question are the decision of Smithers J. in Melbourne Home of Ford Pty. Ltd. v Trade Practices Commission (No.2) (1979) 40 F.L.R. 428 at pp. 431-2, 441 and the decision of Northrop J. in Davenport v. Trade Practices Commission (1983) 47 A.L.R. 505. In both cases the denotation of the relevant matter was held to be sufficient. The language of sub-section 155(1) relevant to the question which now falls for decision was also discussed in some detail by the Full Court in W.A. Pines Pty. Ltd. v. Bannerman (1980) 41 F.L.R. 175; see also Melbourne Home of Ford Pty Ltd. v. Trade Practices Commission (1979) 36 F.L.R. 450 at p. 474 and Pyneboard Pty. Ltd. v. Trade Practices Commission (1982) 57 F.L.R. 368.

The requirement that a notice under sub-section 155(1) identify the matter that constitutes, or may constitute, a contravention of the Act has a twofold purpose. In the first place it is necessary that the notice disclose on its face that it is an exercise of the power which the sub-section confers. That power depends upon the existence, objectively determined, of a "matter", in the sense in which that expression has been explained in earlier decisions of the Court, that constitutes, or may constitute, a contravention of the Act and a belief in the person issuing the notice that the recipient is capable of furnishing information or producing documents relating to the matter so identified. Secondly, the identification of the matter that constitutes, or may constitute, a contravention of the Act provides for the recipient the point of reference by which to judge whether the notice validly requires the specified information to be furnished or the specified documents to be produced. It will only validly do so if the information and the documents specified in the notice can be seen, from the face of the notice itself, to be information or documents that relate to a matter of the kind described in the sub-section and identified in the notice.

When the matter was heard at first instance the senior counsel who then appeared for the appellants expressly disavowed any reliance on the provisions contained in the pure foods legislation of the States and the Australian Capital Territory either as giving meaning to the expressions "orange juice drink" and "orange juice drink concentrate" in the notice or as providing a background against which those engaged in the trade would understand those expressions. On the hearing of the appeal senior counsel for the appellants resiled from this position and sought to justify his right to do so by reference to what was said by the High Court in Chalmers Leask Underwriting Agencies v. Mayne Nickless Ltd. (1983) 57 A.L.J.R. 626. Counsel for the respondent, while not conceding that the appellants were entitled, on the hearing of the appeal, to rely on the provisions of the State and Territory legislation, was content to have the matter raised and argued and the hearing proceeded on that basis. In the circumstances it is unnecessary to consider further the appellants' right to raise the issue for the first time on the hearing of the appeal.

The State and Territory legislation relied upon was -

New South Wales : Pure Food Regulations, 1937 made under the Pure Foods Act, 1908.

Victoria : Food and Drug Standards Regulations 1966 made under the Health Act 1958

Queensland : Food Standards Regulations 1982 made under the Food Act 1981

South Australia : Food and Drugs Regulations, 1978 made under the Food and Drugs Act, 1908-1976

Western Australia : Food and Drug Regulations, 1961 made under the Health Act, 1911- 1979

Tasmania : Public Health (Food and Drugs Standards) Regulations 1971 made under the Public Health Act 1962

Australian Capital Territory : Public Health (Sale of Food and Drugs) Regulations made under the Public Health Ordinance 1928-1951.

For convenience the Victorian legislation only was referred to in detail, it being common ground between the parties that the legislation of the other States and the Australian Capital Territory, if not in identical terms, was relevantly to the same effect as the Victorian provisions.

Regulation 70 of the Food and Drug Standards Regulations 1966 of the State of Victoria deals with "Soft Drinks". Sub-regulation (1) relates to fresh fruit drinks and fruit squash drinks. Sub-regulation (2) deals with fruit juice drinks, paragraph (a) of that sub-regulation providing -

"(a) Fruit juice drinks are drinks composed of fruit juice, potable water carbonated or not, and which contain not less than:-

(i) 25 per cent of blackcurrant juice or lemon juice; or (ii) 50 per cent of pineapple juice, pear juice or apple juice or mixtures of pineapple juice, pear juice or apple juice; or

(iii) 35 per cent of all other fruit juices not named in paragraph (i) or (ii) or mixtures of fruit juice not named in paragraph (ii) of this sub-regulation."

Sub-regulation (4) deals with labelling and provides -

"Every package containing fruit juice drink shall have attached thereto a label on which shall be written the words FRUIT JUICE DRINK immediately following the name of the flavour or drink in letters of the same size, colour and type.

This statement shall be followed immediately by a statement of the proportion of the juice of the fruit or fruits named in the label in letters with a letter height of at least 3 millimetres."

Sub-regulation (5) relates to fruit drinks. Paragraphs (a) and (b) of that sub-regulation provide -

"(a) Fruit drinks are any drinks (other than fresh fruit drinks or fruit squash drink) which are prepared from fruit juice or fruit juices and potable water, carbonated or not.

(b) Fruit drinks shall contain not less than 5 per cent by volume of the juice of the fruit or fruits after which they are named except in the case of passion fruit drinks which shall contain not less than 3.5 per cent by volume of passion fruit juice."

The regulations do not contain any provisions to similar effect in relation to fruit juice concentrates or fruit juice drink concentrates.

For the sake of simplicity the matter was argued in relation to the expression "orange juice drink" in paragraph i of the notice and little attention was directed to the expression "orange juice drink concentrate". This, no doubt, was a convenient course and it is convenient to follow it in stating the reasons for our conclusion. However, as will appear, the latter expression gives rise to an additional difficulty for the appellants.

For the appellants it was argued that the relevant words in paragraph i of the notice were apt to encompass circumstances that constitute, or may constitute, a contravention of sub-section 52(1) of the Act. It was said that the trade in orange juice drink is carried on within the framework of the State and Territory legislation to which reference has been made and that traders engaged in that area of commerce, including the respondent, must be taken to have some familiarity with it. Traders would understand that under that legislation orange juice drink must contain at least 35 per centum of orange juice and every package containing orange juice drink must have attached a label stating the proportion of orange juice which it contains. It was further said that, although conduct in representing as orange juice drink a product which does not contain at least 35 per centum of orange juice may amount to conduct that is misleading or deceptive or that is likely to mislead or deceive and so be a contravention of sub-section 52(1) of the Act, that was not the matter which the relevant words in the notice identify. What they identify was said to be a matter of much narrower compass. They were concerned only with those situations in which the following circumstances co-exist namely, a representation that the product is orange juice drink, the product in fact contains less than 35 per centum of orange juice and the container of the product indicates that the product contains a percentage, being 35 per centum or more, of orange juice. It followed, so the argument ran, that the notice was asserting that in such circumstances the discrepancy between the percentage of orange juice indicated on the container and the true percentage of orange juice in the product will be such that conduct in representing that the product is orange juice drink may be misleading or deceptive.

We are unable to accept this argument. We cannot read the reference in paragraph i of the notice to the product containing a lesser percentage of juice obtained from oranges than that indicated on containers of the product otherwise than as epexigetical of the statement that the product is represented to be orange juice drink. The sense of the notice is that, because the percentage of orange juice contained in the product is less than that indicated on the container, the representation that the product is orange juice drink is false. But what is indicated on the container is irrelevant to the question whether the product is properly described as orange juice drink. The answer to that question must depend exclusively upon the content of the product. It is, in our view, of no assistance to the appellants to say, as counsel for the appellants submitted, that the matter is sufficiently identified if one can postulate some sets of facts falling within the language used which will or may amount to a contravention of the Act notwithstanding that other sets of facts which clearly fall within the language used do not do so.

We should add that the argument in support of the sufficiency of the identification in the notice of the relevant matter is in no way enhanced if the expression "orange juice drink" is given its ordinary meaning unassisted by any considerations arising from the pure foods legislation of the States and the Australian Capital Territory.

An alternative argument was presented for the appellants which, if accepted, would result in the matter identified in the relevant part of the notice encompassing a much wider range of conduct than would be the case if the primary submission were accepted. By this alternative argument counsel contended that the relevant words in paragraph i of the notice refer to two separate situations. In the first of these the conduct concerned is conduct amounting to a representation that the product is orange juice drink, that expression being given its ordinary meaning or, alternatively, a meaning reflecting the pure foods legislation of the States and the Australian Capital Territory. In the other situation the conduct concerned is conduct amounting to a representation on the container of the product that the percentage of orange juice is greater than that which the product in fact contains.

We are also unable to accept this argument. We do not agree that the recipient of the notice, even one having knowledge of the trade and the relevant legislation regulating that trade, would read the notice in the dual sense which the argument asserts. The language of the notice clearly points to conduct in representing a product as orange juice drink and could not, we think, reasonably be said to convey to the recipient that the matter being investigated was the incorrect statement on containers of the percentage of orange juice said to be in the product divorced from any representation that the product was orange juice drink. Indeed, the subtlety of counsel's argument only serves to demonstrate that the language used is not apt to convey with sufficient particularity to the recipient of the notice what was the matter which was the concern of the Chairman and which was considered to provide a sufficient foundation for the requirement to furnish the specified information and to produce the specified documents.

What has been said in relation to the reference in paragraph 1 of the notice to orange juice drink is equally applicable to the reference to orange juice drink concentrate. There is, however, a further difficulty for the appellants arising from the circumstance that the pure food legislation upon which they rely to give meaning to the expressions used in the notice does not prescribe a product standard in relation to fruit juice drink concentrate as it does in the case of fruit juice drink. In these circumstances it is difficult to postulate that a container of orange juice drink concentrate would indicate a percentage of juice obtained from oranges that the product is said to contain. Rather it would seem that any reference to such a percentage would be not to the concentrate itself but to the resulting product on the footing that, when diluted according to the directions given on the container, that product would contain the percentage of juice indicated.

It would not be fruitful to attempt to state in definitive terms the manner in which the requirement that a notice under sub-section 155(1) identify the matter that is said to constitute, or that may constitute, a contravention of the Act is to be satisfied in all cases. Each case will depend upon its own circumstances. Suffice it to say that the matter must be identified in such a way that the recipient can perceive the general ambit of the subject matter of the investigation that is being undertaken and so that the twofold purpose to which we have referred is satisfied. In our opinion paragraph 1 of the notice under consideration in this appeal does not do so.

The appeal is dismissed with costs.

JUDGE2

I have had the opportunity of reading the reasons prepared by the Chief Judge and Mr Justice Neaves. I agree with them and with the orders proposed but I would add a few words of my own.

Section 155 of the Trade Practices Act 1974 (Cth) empowers the Chairman of the Commission, if he has reason to believe that a person is capable of furnishing information or of producing documents relating to a matter which constitutes or may constitute a contravention of the Act, to require, by notice in writing served on that person, that the person furnish to the Commission such information or produce to the Commission such documents. Refusal or failure to comply with the notice to the extent that the recipient is capable of complying with it renders the recipient liable to prosecution and penalty.

Provisions of that kind are interpreted as requiring the giver of the notice to identify in the notice, expressly or by necessary inference, the information or documents which are sought and the matter or matters within the concern of the giver of the notice to which the information and documents sought relate. Such identification should enable the recipient of the notice readily to perceive that the giver of the notice is entitled to require the information or documents sought. In Snow v Keating (1978) 19 ALR 373, Burt CJ examined s.264 of the Income Tax Assessment Act 1936 (Cth). His Honour said at p.375:

"As it arises upon the wording of that section and specifically upon the wording of sub-s (1) (b) of it, the question simply is whether the Commissioner has been given a general power to be exercised by notice in writing to require a person, in the terms of the notice given in this case, to appear and give evidence or whether the power so granted is restricted in that its proper exercise requires that the notice in writing should identify the income or assessment of a specific person as being the subject matter upon which the evidence to be given is to be 'concerned'.

Once the question is formulated in that way the answer to it would appear to be self evident. The power which is given can only be exercised by 'notice in writing' and to be within par (b) of sub-s (1) the Commissioner has been granted the power in that way to require any person . . . to attend and give evidence . . . concerning his or any other person's income or assessment. Those words are words of limitation upon the power which is given, and more particularly upon the means whereby the power which is given can be exercised. A notice requiring a person to appear and give evidence without identifying a subject matter within the sub-section with which the evidence to be given is to be concerned is not a notice within the sub-section; the notice given in the instant case, which beyond stating that it is given 'for the purpose of inquiring into or ascertaining liability under any of the provisions of' the Act, is completely at large and is not such a notice. . . . "

The same view was expressed in Federal Commissioner of Taxation v Australia and New Zealand Banking Group Limited (1979) 143 CLR 499. At p.525, Gibbs ACJ said:

". . . To be valid a notice to produce documents under s.264(1)(b) must of necessity identify with sufficient clarity the documents which are required to be produced. However the notice must in my opinion go further: it must show the person to whom it is addressed that any document which he is required to produce is one whose production the Commissioner is entitled to require."

At pp.536-7, Mason J said :

"The Commissioner's power to require production under s.264(1)(b) is limited to documents relating to a person's income or assessment. Consequently, the Commissioner may not legally require the production of all the contents of a specified box or even all the documents therein, but only such of them as relate to a person's income or assessment. For this reason there is a fatal defect in the short form of notice addressed to the Bank dated 23rd February 1977 as it does not describe the documents required to be produced except by reference to their location. What par.(1)(b) has in mind is that a notice may be given requiring the recipient to produce all books, documents and other papers in his custody or control relating thereto, that is, to the income or assessment of the person whose name is stated in the notice. It is then for the recipient to decide for himself, difficult though the task may be, which of the documents answer the description. If his decision is wrong he exposes himself to prosecution and penalty."

Section 155 of the Trade Practices Act 1974 (Cth) must be given effect in like manner. Not only does the section provide a penalty for breach of the obligation imposed upon the recipient of the notice, but s.155(1) in terms does not empower the Chairman to require the recipient of the notice to provide any information whatever or any document whatever but only "such information" and "such documents", that is to say, information and documents "relating to a matter that constitutes, or may constitute, a contravention of this Act". The notice will not be a valid notice giving rise to penal consequences for non-compliance unless it identifies what is the matter or matters that constitute or may constitute a contravention of the Act, and the information or documents sought that relate thereto.

Smithers J applied this principle in Melbourne Home of Ford Pty Ltd v Trade Practices Commission and Bannerman (No.2) (1979) 40 FLR 428 at 436-7 :

"It was submitted by Mr. Goldberg that when a declaration is sought under s.163A(1)(a) in relation to the validity of the notice given to a person under s.155, that being an 'act or thing done . . . under this Act', the validity of the requirement in such a notice to furnish particular information depends upon it being apparent from the terms of the notice that such information does in fact relate to a relevant matter. I accept this submission as sound. It is in accordance with general principles of administrative law."

Northrop, Deane and Fisher JJ expressed the same view in Pyneboard Pty Ltd and Ors v Trade Practices Commission and Anor (1982) 57 FLR 368 at 375-6.

In the present appeal, the following part of the notice was thought by the learned trial Judge not adequately to identify a relevant matter :

". . . I, RONALD MOORE BANNERMAN, Chairman of the Trade Practices Commission, having reason to believe that Mildura Fruit Juices Pty Ltd (hereinafter referred to as 'the company') is capable of furnishing information and producing documents relating to matters that constitute, or may constitute, contraventions by producers of orange juice products in Australia, of -

i. sub-section 52(1) of the Act, namely that companies supplying orange juice products in trade or commerce have engaged or are engaging in conduct that is misleading or deceptive or is likely to mislead or deceive, namely, . . . representing as orange juice drink and orange juice drink concentrate, products containing a lesser percentage of juice obtained from oranges than that indicated on containers of the products; . . . "

It was conceded by Mr K.R. Handley, QC, senior counsel for the appellants, that the above is an essential part of the notice and that the validity of the notice stands or falls with it. An inference from this concession is that some parts of the information sought by the Chairman of the Commission and some of the documents required by him to be produced relate to the above part of the notice and not to any other part of it. What that information is and what those documents are was not stated. I simply accept counsel's concession in this regard.

The learned trial Judge considered the specified matter to be, in effect, unitelligible, although his Honour did not use that adjective. His Honour said:

". . . I do not see how it can be likely to mislead or deceive to describe as 'orange juice drink', a product if that product is in fact orange juice drink. It would appear to me to be misleading or deceptive conduct to wrongly label the product as containing a greater percentage of orange juice than it in fact did contain but one would think that the question of whether it was orange juice drink would depend upon the amount of orange juice in the product and not what was on the label. . . . The question of whether a product is labelled in a manner which wrongly states the percentage of orange juice in it does not appear to be related to the question of whether the product is properly represented as 'orange juice drink'. This depends on whether the product complies with any relevant statutory definition of 'orange juice drink' or if there is no such definition whether in fact it falls within that description."

Amongst his contentions, Mr Handley submitted that it is sufficient that conduct may constitute a contravention of the Act and that therefore it is sufficient for a s.155 notice to specify criteria which, taken together with other circumstances, could constitute a contravention. Mr Handley submitted that the subject notice sufficiently identified a relevant matter by referring to a contravention or possible contravention of s.52(1) of the Act having, inter alia, the following elements, namely: a representation of products as "orange juice drink" or "orange juice drink concentrate" which products contained a lesser percentage of juice obtained from oranges than that indicated on containers of the products. Mr Handley submitted:

. . . The notice asserts (that) the representation that the product was orange juice drink constitutes or may constitute a contravention of section 52.

In some circumstances, the representation could constitute a contravention in the circumstances indicated. The notice must be taken to assert that the representation was in fact made in those circumstances and the identification would be sufficient. The question then becomes whether there are any circumstances in which the representation could be shown to be misleading or deceptive by proof that the product contained less orange juice than the amount represented on the container.

Mr F.H. Callaway, counsel for the respondent, contended that such an approach to the notice did not accord with principle. Mr Callaway submitted that a s.155 notice is not to be read as if it were a pleading but rather that the notice must identify by language, whether formal or informal, what is the matter considered to be a contravention, or possible contravention, of the Act and what information or documents relating thereto are required.

I prefer the submission put by Mr Callaway on this point. The notice should indicate to the recipient of the notice that the information and documents which the receiver is required to supply to the Commission are information and documents which the Commission is entitled to require. The notice should give to its recipient sufficient information to enable the recipient to perceive what are the matters in respect of which the Commission requires information or documents, that those matters constitute contraventions or possible contraventions of the Act and that the information and documents sought are relevant thereto.

That information should be conveyed with "reasonable clarity", the expression used by the Court in Pyneboard Pty Ltd and Ors v Trade Practices Commission and Anor, cited above, at p.375. At p.376, the Court went on to say:

". . . it should be stressed that the question whether a notice discloses the necessary relatedness between documents or information sought and the identified 'matters' is, like the question whether the terms of the notice are sufficiently clear, not to be approached in an over-technical or hypercritical way. As was pointed out in Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No.3) ((1980) 47 FLR at p.173), the power conferred by s.155(1) is an investigative power which authorizes questions both wide in scope and unspecific in subject matter. The fact that the recipient of the notice is or will, in the event, be unable to supply relevant information or disclose relevant documents will not, in itself, preclude the validity of a requirement in a s.155 notice. The relevant question is whether the information or documents sought are capable, in a broad investigative context, of being properly regarded as related to any one of the 'matters' which the notice identifies."

Thus, a s.155 notice must be read having regard to the function which the Commission performs. It should not be read technically or narrowly and it may be expressed in ordinary language. Nevertheless, the notice must convey to the recipient what is the duty which the service of the notice imposes upon him. The recipient should not have to strain for a meaning or be left in confusion as to what was intended.

In my opinion, the subject part of the s.155 notice did not sufficiently identify a matter that constitutes or might constitute a contravention of the Act. I agree with the view expressed by the learned trial Judge with respect to it. In my opinion, that part of the notice is unintelligible and a reader is left in confusion as to what was intended.

I agree with the orders proposed.