Davenport v Trade Practices Commission

[1983] FCA 78

Re: TREVOR DAVENPORT
And: TRADE PRACTICES COMMISSION AND RONALD MOORE BANNERMAN (1983) 70 FLR 123
T. No. G5 of 1982
Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY
GENERAL DIVISION
Northrop J.(1)

CATCHWORDS

Trade practices - notice pursuant to section 155 of the Act - validity of notice - meaning of 'any such information' - meaning of 'may constitute a contravention of the Act' - sufficiency of descriptions of contraventions.

Trade Practices Act 1974 ss.45, 48, 155, 163A(1)

Trade Practices - Trade Practices Act 1974 (Cth) - Notice to furnish information - Validity of notice - Whether too wide - Meaning of "any such information" - Meaning of "may constitute" - Sufficiency of descriptions of contraventions - Trade Practices Act 1974 (Cth), s 45, 48, 155, 163A(1).

HEADNOTE

Upon being served with a notice under s. 155 of the Trade Practices Act 1974 requiring him to furnish certain information, the applicant sought a declaration under s. 163A of the Act that he was not obliged to comply with the notice. The application argued that, on the true construction of s. 155, the information requested must be that which the Chairman has reason to believe the recipient is capable of furnishing; that the words "may constitute" as used in the notice referred to a matter the constituent elements of which lie at least in part in the future; and that the notice did not sufficiently describe the matters which the notice alleged "may constitute" contraventions.

Held: (1) The phrase "any such information" in s. 155(1)(a) of the Trade Practices Act 1974 refers to any information relating to a matter that constitutes or may constitute a contravention of the Act and is not limited to information that the Chairman has reason to believe a person is capable of furnishing.

(2) Having regard to the nature of the power conferred by s. 155, which is investigative, a wide construction of the section is not unfair to the recipient of a notice issued under it.

Melbourne Home of Ford Pty Ltd v. Trade Practices Commission (No. 3) (1980) 47 F.L.R. 163; Pyneboard Pty Ltd v. Trade Practices Commission (1983) 57 A.L.J.R. 236, referred to.

(3) The words "may constitute" in s. 155(1) enable a court, at the date of a challenge to the validity of the notice, to judge from the "matter" appearing in the notice whether that body of facts together with other facts (if they come to light) which may or may not have occurred would constitute a contravention. The words include, but are not limited to, future contraventions.

W. A. Pines Pty Ltd v. Bannerman (1980) 41 F.L.R. 175 per Brennan J. at 179-180, followed.

(4) The matters listed in the notice were sufficiently described and with sufficient clarity to enable the recipient to perceive that the matters "may constitute" contraventions of the Act.

Melbourne Home of Ford Pty Ltd v. Trade Practices Commission (No. 2) (1979) 40 F.L.R. 428 at 441 per Smithers J.

HEARING

Hobart, 1983, February 22, 23; April 12. #DATE 12:4:1983

APPLICATION.

Application for a declaration under s. 163A of the Trade Practices Act 1974 (Cth) that the applicant was not obliged to comply with a notice served upon him by the respondents under s. 155 of the Act requiring him to furnish information.

F. H. Callaway, for the applicant.

J. A. Strahan, for the respondent.

Cur. adv. vult.

Solicitors for the applicant: Mallesons.

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

F.P.C.

ORDER

The application be dismissed with costs.

Orders accordingly.

JUDGE1

On or about 22 October 1982, a notice under s.155 Trade Practices Act 1974, "the Act", was served on Trevor Davenport, "the applicant". The notice was signed by the Chairman, Trade Practices Commission, and was accompanied by a letter dated 22 October 1982 which read as follows:

"PETROL PRICES - LAUNCESTON AREA As a result of complaints received and Commission observations the Commission is investigating whether recent price increases in the retail price of petrol in the Launceston area have come about as the result of conduct in breach of the Trade Practices Act, in particular price collusion by resellers and/or resale price maintenance by an oil company.

1. The Commission is continuing its investigation by way of further enquiries of certain Launceston petrol resellers and oil company agents and representatives. The information sought from you is set out in the attached Notice issued under the Trade Practices Act. Any additional information you may wish to give would be appreciated; likewise anything else you may wish to say which you think would assist the Commission in deciding what action, if any, it should take.

1. Should you have any queries about any of the matters raised in the Notice or the Commission's investigations please do not hesitate to ring me on Canberra 64 2876 or Mr. Barry Newport in the Commission's Hobart Office on 345 145."

The notice was dated 22 October 1982, was directed to the applicant, and read as follows:

"I, RONALD MOORE BANNERMAN, Chairman of the Trade Practices Commission, having reason to believe that T. Davenport is capable of furnishing information relating to matters that may constitute contraventions of section 45 and section 48 of the Trade Practices Act 1974 hereby require you to furnish to the Commission in writing the information specified in the Schedule to this Notice by delivering the information to Mr. Stephen Wicks or Mr. Adrian Medwin at the Family Court of Australia, 2nd Floor, TAA Building, Corner Brisbane and George Streets, Launceston on Friday, 5 November 1982 between the hours of 9.00 a.m. to 4.00 p.m.

THE MATTERS THAT MAY CONSTITUTE CONTRAVENTIONS

OF SECTION 45 AND SECTION 48

(1) Any arrangement or understanding among petrol retailers and oil companies in the Launceston area to raise the retail price of super grade petrol during the period 27 September 1982 to 5 October 1982.

(2) Action by representatives of Shell Australia Pty. Ltd. to increase the retail price of petrol at Shell brand sites."

The schedule to the notice read as follows:

INFORMATION TO BE SUPPLIED

1. "Are you aware of any discussions about the retail price of petrol between Launceston petrol retailers during the period 27 September 1982 to 5 October 1982? Did you take part in any discussions? If so, when and where did they take place, who was involved and what was said? If you were told of the discussions but did not yourself take part, who told you and when, what were you told and what did you say in reply?

1. Did you contact any petrol retailer or oil company representative or agent during the period 27 September 1982 to 5 October 1982 about the retail price of petrol in the Launceston area? If so, whom did you contact, when, what did you say and what was said in reply?

1. Did any petrol retailer or oil company representative or agent contact you during the period 27 September 1982 to 5 October 1982 about the retail price of petrol in the Launceston area? If so, who did, when, what were you told and what did you say in reply?"

The applicant brings these proceedings under s.163A of the Act seeking a declaration that he is not obliged to furnish the information sought in the notice.

The only evidence before the Court is the notice and the accompanying letter.

For the purposes of this case, the relevant parts of s.155(1) are set out:

"155.(1) Where . . . the Chairman . . . has reason to believe that a person is capable of furnishing information . . . 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, by writing signed by that person . . . within the time and in the manner specified in the notice, any such information;

. . . "

A similar power is conferred with respect to documents. Under sub-section (5) a person who refuses or fails to comply with a notice under sub-section (1) to the extent that the person is capable of complying with it, is liable to a penalty of $1,000 or imprisonment for three months.

A number of authorities have illustrated the nature and extent of the power conferred by s.155 of the Act. It is an investigative power, drastic, almost inquisitorial, in nature. It is to be given a wide construction and should not be confined narrowly. It abrogates the privilege against self-incrimination whether for a criminal offence or for a penalty. The Chairman must have reason to believe that the recipient of the notice is capable of furnishing information relating to relevant specified matter, but he does not have need to have reason to believe that the specified matter constitutes or may constitute a contravention of the Act. The word "matter" is not to be given a technical meaning but refers to any affair or thing. The recipient of the notice must be able to ascertain from the notice that the Chairman is exercising the power under s.155 of the Act and to ascertain what is the matter which constitutes or may constitute a contravention of the Act. The notice must be reasonably construed having regard to the commercial nature of the matters giving rise to the notice.

All of these propositions were accepted by counsel for the applicant. Although his submissions were made before the High Court published its judgment in Pyneboard Pty. Ltd. v. Trade Practices Commission on 18 March 1983, the propositions stated are consistent with the opinions contained in that judgment. Counsel based his case on three broad submissions.

First, he submitted that on the true construction of s.155, the Chairman must have reason to believe that the applicant is capable of furnishing the particular information specified in the notice. He submitted that it is not sufficient that the Chairman have reason to believe that the applicant is capable of furnishing information at large relating to a matter which constitutes or may constitute a contravention of the Act.

He argued that the words "any such information" in paragraph (a) are qualified not only on a wide construction, by the words "relating to a matter . . . " but also, on a narrow construction, by the words "the Chairman has reason to believe that a person is capable of furnishing" As counsel stated the proposition:

"Whereas the paragraph refers to requiring the person to furnish to the Commission any such information, it is submitted that the words 'any such information' could grammatically bear either of two meanings: any such information could mean any information relating to the matter that constitutes, or in the case of this notice may constitute, a contravention. Alternatively, 'any such information' could mean any information which the Chairman has reason to believe that the person is capable of furnishing, being information relating to a matter that may constitute a contravention. In my submission both of those readings are open as a matter of grammar."

The notice in the present case did not state that the Chairman had reason to believe that the applicant was capable of furnishing the particular information sought by the notice.

Counsel advanced three reasons why the narrow construction should be preferred. If his submission succeeds the notice need not be answered by the applicant.

As the first reason, counsel argued that the narrow construction is fair to the recipient of the notice. In support of this contention counsel postulated a case where, he suggested, a wide construction would be less fair to the recipient of the notice: because the Chairman has reason to believe that a person could answer one question relating to a matter which constitutes or may constitute a contravention of the Act, he may ask any number of other questions which related to that matter whether or not he has any reason to believe the recipient is capable of answering them. Indeed, he contended that the Chairman need not even ask that one question which he reasonably believed that the recipient of the notice could answer; yet that one question would entitle him to ask any number of other questions. He contended, further, that as exculpatory information could be sought it would always be the case that the Chairman would have a reasonable belief that any person had information relating to a matter which constitutes or may constitute a contravention of the Act; in any case, the person to whom the notice is addressed would either respond in the affirmative or the negative.

As the second reason, counsel argued that no heavier burden would be placed upon the Chairman were the narrow construction to be preferred.

As the third reason, counsel argued that the abolition of the privilege against self-incrimination leads to the inference that the narrow construction is to be preferred. As counsel put it:

"Where that privilege has been abolished it is submitted that that is a powerful consideration against adopting a construction which means that the Chairman can ask anyone anything at all provided only that it relates to a matter which constitutes or may constitute a contravention."

This proposition has not to my knowledge been argued previously before the Court. However, there are passages in the judgment of Smithers J. in Melbourne Home of Ford Pty. Ltd. v. Trade Practices Commission (No. 2) (1979) 40 F.L.R. 428 which tend to the contrary, but I understand this argument had not been presented to His Honour in that case.

The submission must be considered having regard to the nature of the power conferred by s.155. For present purposes reference may be made to Melbourne Home of Ford Pty. Ltd. v. Trade Practices Commission (No. 3) (1980) 47 F.L.R. 163 per Brennan, Keely and Fisher JJ. at p.173:

"In the case of a matter that may constitute a contravention, the chairman may not know the constitutive facts of a contravention (if there has been one) and he may ultimately ascertain that there has been no contravention in the conduct or transaction which he is investigating. Because his attention has been drawn to a particular act or transaction which warrants investigation and because he has reason to believe that the person to whom the notice is given is capable of furnishing information relating to the matter under investigation he is engaged in a function of investigation, not in a task of proving an allegation. The power conferred by s.155(1) is in aid of that function and is a power which authorizes inquiries both wide in scope and indefinite in subject matter. It is an investigative power which is under consideration here and it is not possible to define a priori the limits of an investigation which might properly be made. The power should not be narrowly confined."

In Pyneboard Pty. Ltd. v. Trade Practices Commission, supra, Mason, Wilson and Dawson JJ., in discussing the nature of the power conferred by s.155(1) said at p.24:

"Subsection (1) confers a power on the Commission to require the provision of information, the production of documents or the giving of evidence relating to contravention, or possible contravention, of the Act. It is significant that sub-s.(5) makes it an offence for a person to refuse or fail to comply with a notice under sub.s(1) 'to the extent that the person is capable of complying with it' for these words in themselves are quite inconsistent with the existence of a privilege entitling the recipient of a notice to refuse to comply, whether on the ground that compliance might involve self-incrimination or otherwise. Moreover, it is apparent that the purpose of conferring the power and imposing the obligation is to enable the Commission to ascertain whether any contravention of the Act has taken place, or is taking place, and to make the information furnished, the documents produced and the evidence given admissible in proceedings in respect of contravention of the Act, a purpose which would be defeated if privilege were available."

Having regard to the nature of the power conferred by s.155, the Court cannot accept that to adopt the wide construction would be unfair to a person to whom a notice has been given. The member of the Commission who gives the notice is constrained in the exercise of his power: the Chairman must possess the requisite reason to believe, there must be a nexus between the information to be furnished and the matter or body of facts which constitutes or may constitute a contravention of the Act, the matter must be sufficiently described and the power must be exercised bona fide and not for a collateral or improper purpose. Moreover, it must be used with regard to the effect that the exercise of the power will have upon those affected thereby. It does not necessarily appear unfair that, to use the example of counsel, the Chairman should be able to require a person to furnish information relating to a matter which constitutes or may constitute a contravention of the Act where he has a reason to believe only that the person can provide some of the specific information requested. Rather, the power derives its effect and force in that it enables the Chairman to elicit information from persons whom he has reason to believe have some information concerning the particular matter.

For the reasons expressed earlier as to the nature of the power conferred by s.155 it is not necessary to deal with the second and third limbs of counsel's argument. Nevertheless, to adopt the narrow construction would have the tendency to impose a heavier burden upon the Chairman. Counsel contended that before the power could be exercised, the Chairman must have a reason to believe that the person to whom the notice is given could furnish a class or type of information. However, it appears that in some instances it might be difficult to characterize the Chairman's belief with sufficient accuracy. Were the description of the information to be cast too widely it might be argued successfully that the Chairman did not possess the requisite belief as to the information which might be furnished in reply. Were the description of the information to be cast narrowly in accordance with actual knowledge of the Chairman which could not be challenged, then, the notice would not serve its investigative function but could at best serve only a corroborative purpose. In my opinion it was never intended that the Chairman could be challenged with respect to his reasonable belief concerning the capability of the person to whom the notice is given to furnish the particular information with the risk that the notice be struck down as a whole because the description of the Chairman's belief was drawn too widely.

For completeness, I should add that the third reason of counsel, that the abolition of the privilege against self-incrimination weighs against the wide construction of s.155, is one I cannot accept. It seems that it might as easily be inferred that the abolition of the privilege may support the proposition that the power was intended to be a wide one. I express no opinion concerning this matter.

Secondly, counsel submitted that the words "may constitute" as used in the notice cannot refer to a matter which lies wholly in the past, that a matter which "may constitute" a contravention is a matter the constituent elements of which lie at least in part in the future. In other matters that have come before the Court, the notice has used the words of the section, namely "that constitutes, or may constitute". Here the notice uses the words "may constitute" only.

In support of his submission, counsel for the applicant referred to the dicta of Lockhart J. in W.A. Pines Pty. Ltd. v. Bannerman 41 F.L.R. 175 at p.188 where His Honour said:

"The words 'that constitutes or may constitute' a contravention do not govern or qualify the Commission's belief. Probably they are intended to draw a distinction between existing or past contraventions ('that constitutes') and prospective contraventions ('may constitute'); for example a proposed merger under s.50 that may be a contravention if it occurs. Support to this approach is given by the United States experience of the Antitrust Civil Process Act 1962 (U.S.), s.3 of which provided for the issue of a civil investigative demand, a notice serving a similar purpose to a notice under s.155(1). It was held in United States v. Union Oil Co. (1965) 343 F. 2d 29 by the Court of Appeals for the Ninth Circuit that a civil investigative demand could not properly be issued under the 1962 Act to obtain documents relating to an investigation of a proposed acquisition as no violation of the law had yet occurred and the 1962 Act was limited to investigations of existing or past violations. The Act was amended to overcome this difficulty in 1976 by the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (ss.101 and 102)."

The issue now raised was not an issue in that case. In this case, no evidence was presented as to the United States' experience nor was the relevant legislation to which Lockhart J. referred cited or otherwise referred to. My researches indicate that the legislation there referred to is sufficiently different in form to render any comparisons with s.155 of the Act of dubious value. Section 3 of the Antitrust Civil Process Act 1962 (U.S.) originally provided in part:

"Wherever the Attorney General or the Assistant Attorney General in charge of the Antitrust Division of the Department of Justice, has reason to believe that any person under investigation may be in possession, custody or control of any documentary material relevant to a civil antitrust investigation, he may . . . issue in writing and cause to be served upon such person, a civil investigative demand requiring such person to produce such material . . .

(b) Each such demand shall -

(1) state the nature of the conduct constituting the alleged antitrust violation which is under investigation and the provision of law applicable thereto . . . "

The Hart-Scott-Rodino Antitrust Improvements Act of 1976 inserted a new section 3(b) requiring the demand to state the nature of:

"(A) the conduct constituting the alleged antitrust violation, or

(B) the activities in preparation for a merger, acquisition, joint venture, or similar transaction, which, if consummated, may result in an antitrust violation . . . "

The words "alleged" and "if consummated" do not appear in sub-section 155(1) of the Act.

I also decline for the same reasons to draw an analogy between the words "is or is likely to . . . " and "is or may . . . " as used in the Act. Counsel for the applicant had contended that "is or is likely to . . . " as used in the Act owed its origin to the United States' experience where the legislature has endeavoured to arrest not only actual antitrust violations which have occurred but also what would be illegal trusts, conspiracies and mergers in their incipiency. I am not persuaded that any analogy should be drawn.

Counsel for the applicant also argued that as the belief of the Chairman concerning whether or not a matter constitutes or may constitute a contravention of the Act is irrelevant, then, so too, the degree of knowledge or proof or certainty of the facts which make up the matter is irrelevant. This is the crux of the matter.

In W. A. Pines Pty. Ltd. v. Bannerman, supra, the Full Court held that it sufficed if the Chairman had reason to believe that the information requested related to a matter. As a matter of law, the power to request information is validly exercised only where the matter "constitutes or may constitute a contravention of the Act". As was stated in Melbourne Home of Ford Pty. Ltd. v. Trade Practices Commission (No. 1) (1979) 36 F.L.R. 450 by Franki and Northrop JJ. at p.474 the word "matter" in sub-section 155(1) is not to be given a technical meaning. It is to be construed in its ordinary sense of an affair or thing. It is not to be construed as being in the nature of a lis or a suspected lis.

It is apparent that where in fact there has been a contravention of the Act and a notice has been issued pursuant to sub-section 155(1), the person who has the reasonable belief that a person is capable of supplying, say, information, will invariably not know of the whole body or concatenation of material facts which constitute a particular contravention. It may be that if other facts were known it might be discovered that numerous contraventions had occurred. It might also be that the other facts would enable a defence to be mounted successfully and that, hence, no contravention could be shown to have occurred. The power derives its very force because it enables the Commission to discover those facts.

In my opinion, it was not intended that the facts which make up the matter should be predetermined. Yet, if the contention of counsel for the applicant were to be accepted, it would appear that, where it has been conceded that all the facts which make up a particular contravention have occurred, they must be apparent on the face of the notice and, hence to some extent be predetermined; for, were the notice to be challenged, in order to uphold the validity of the notice, a Court would have to be able to determine that the stated matter or facts or things taken alone and however liberally construed would, if proven, constitute a contravention of the Act.

Further, if, in those circumstances, the matter had to be described, even in the form of a pleading, with sufficient particulars to satisfy that test, the Commission would be hampered in its investigative powers; for it would have to define the matter in broad terms such that it could be seen to constitute a contravention before it had the evidence which related to it. It also would or might have the effect of restricting the Commission in its ability to seek information which is exculpatory in nature or which would serve to establish that a person had a good defence. In my opinion, therefore, the words "may constitute" enable a Court, at the date of a challenge to the validity of the notice, to judge from the material presented in the notice, the "matter" as there denoted, whether if other facts which may or may not have occurred come to light, that body of facts would constitute a contravention. In reaching this conclusion I have derived support from the views expressed by Brennan J. in W. A. Pines Pty. Ltd. v. Bannerman, supra, at pp.179-180:

"Whether or not the relevant body of facts constitutes a contravention is a matter of law, and that question does not turn upon the perception or knowledge of the facts held by the Chairman or any other person. But when the section speaks of a matter which 'may constitute' a contravention, it speaks not of the relevant and entire body of facts as they exist or have existed - for that body of facts either does or does not constitute a contravention - but of a body of facts which are not fully known and which, if and when they are fully known, may reveal themselves as constituting a contravention. A 'matter that may constitute a contravention' is the facts being investigated, some of which are not known by the Commission, the Chairman or the Deputy Chairman. However, a 'matter that may constitute a contravention' does not take its character from the belief of the Commission, the Chairman or the Deputy Chairman, but from the nature and quality of the facts as they are or have been and as they may reasonably be suspected to be or to have been. A matter which 'may constitute' a contravention also, encompasses future facts, that is, facts which will occur or the future occurrence of which may reasonably be suspected. The character of the matter is determined objectively, and if it could be shown that a contravention would not be constituted by a concatenation of facts which exist or have existed and facts which might reasonably be suspected to exist or to be about to exist or to have existed, there would be no 'matter' relating to which a person could furnish information etc., as provided for by s.155(1). That is not the present case, as will subsequently appear.

Although the character of a 'matter' in no way depends upon the belief of the chairman, his knowledge of a matter (that is, of past, present or future facts and of facts the existence or future occurrence of which may reasonably be suspected) is material to the belief which he must form if the power under s.155(1) is to be validly exercised. That belief is that the person to whom the notice is to be given is capable of furnishing information, producing documents or giving evidence relating to the facts known or suspected. It is not necessary that he should believe that the information, documents or evidence will establish or tend to establish a contravention, but merely that they relate to the matter. Information, documents and evidence which tend to negative a suspected contravention or liability to conviction or which tend to exculpate a person suspected to be a party to a contravention or offence are as much within the ambit of s.155(1) as information documents or evidence which tend in the other direction. Thus, an inquiry under s.155 may relate to a defence or possible defence under s.85. This is because 'the Commission is concerned with contraventions or possible contraventions of the Act and must consider them not only from the point of view of possible civil proceedings, but also from the point of view whether a prosecution should be brought', as Bowen C.J. said in Riley McKay Pty. Ltd. v. Bannerman (1977) 31 F.L.R. 129, at p.134. The power conferred by s.155 is clearly in aid of the performance of the Commission's functions, and: 'Because it is part of the Commission's function to be concerned with investigation of contraventions or possible contraventions and to be concerned with determining whether any proceedings, civil or criminal, should be brought in respect of a contravention, the Commission will, quite properly, be interested to know whether there is a possible defence under s.85(1) at p.134."

The words "may constitute" are not to be construed as being limited to future contraventions of the Act. They include the possibility of a contravention occurring or having occurred. In passing it should be noted that the Court does not have to determine whether a contravention has occurred or will occur nor would it idly speculate or draw on improbable circumstances to uphold the validity of a notice. The Court expresses no view on the degree of specificity which is necessary to satisfy a court in any particular case.

Thirdly, it was submitted that even if the submissions of counsel were not accepted, the matters which "may constitute" contraventions are insufficiently described or not described with sufficient clarity. It was not put that the applicant could not identify the information he was requested to furnish or that the relationship between the information and the matters as spelled out in the notice was in doubt. Rather, it was put that it could not be said of the matters that they may constitute contraventions of sections 45 and 48 of the Act. Some weight was placed upon the views expressed by Smithers J. in Melbourne Home of Ford Pty. Ltd. v. Trade Practices Commission (No. 2), supra, at p.441:

"As indicated above the notice must contain sufficient information to enable the recipient to perceive that the obligations cast upon him by the notice are obligations which may properly be cast upon him according to law. In the present case he should be able to perceive that the information and documents which he is required to furnish and produce do relate to a matter which constitutes or may constitute a contravention of the Act."

Sections 45 and 48 of the Act are specifically adverted to. It must be determined as a matter of law whether possible contraventions have been established.

It is stated in the notice that the two matters quoted earlier in these reasons "may constitute contraventions of sections 45 and 48". The word "respectively" is not used; however the repetition of the word "section" indicates that it may be implied.

The first matter, as outlined, is specific as regards the persons involved, "petrol retailers and oil companies", the area "Launceston" and the period, "27 September 1982 to 5 October 1982". Counsel contended that an arrangement or understanding to raise the retail price of supergrade petrol may not constitute a contravention of s.45. Sub-section 45(2) provides, inter alia:

"(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."

Section 45A provides, in essence, that a provision shall be deemed for the purposes of s.45 to have or be likely to have the effect of substantially lessening competition if the provision has the purpose or is or is likely to have the effect of "fixing, controlling or maintaining . . . the price . . . in relation to a service . . . to be acquired or supplied by the parties . . . ". It is apparent that only in certain circumstances could the raising of petrol prices fall within the deeming provision, s.45A. However, it is clearly the Commission's endeavour to discover whether those circumstances have transpired or will transpire. Accordingly, the matter may constitute a contravention of s.45.

The second matter is expressed more broadly and with less specificity. Section 48 of the Act provides that a corporation or other person shall not engage in the practice of resale price maintenance. Section 96 then spells out the various forms that practice may take.

The matter indicates the supplier, 'Shell Australia Pty. Ltd.', that the goods are to be sold by retail, the goods 'petrol', but not on the face of it the 'second person' to which s.96 refers. It is implied, however, that these are the petrol retailers who would be selling petrol by retail. Merely increasing the retail price would not of itself constitute a contravention. It is necessary to establish, inter alia, whether or not the supplier had specified that the petrol was not to be sold at a price less than the price specified. This is a fact yet to be established. The factual context has been given (although it is true no time period has been supplied) and reference has been made to the particular section of the Act which may or may not have been contravened. Section 96 specifies conduct prohibited by s.48. The Commission is seeking information relating to those matters. The applicant has been given notice of the factual context in which the investigation has arisen and can look to s.96 to ascertain what particular action to increase the retail price would constitute a contravention of the Act. He can perceive that the information relates to a matter which may constitute a contravention. Therefore, this matter also may constitute a contravention of the Act.

In all the circumstances the application fails. The application is dismissed with costs.