Devenish v Jewel Food Stores Pty Ltd

[1991] HCA 7

HIGH COURT OF AUSTRALIA

Mason C.J., Brennan, Deane, Dawson and Toohey JJ.

DEVENISH v. JEWEL FOOD STORES PTY. LTD.

(1991) 172 CLR 32

9 April 1991

Trade Practices

Trade Practices—Conduct in concert—Conduct hindering or preventing acquisition of goods by third person from fourth person—Concerted conduct in withholding milk supplies to supermarket operator—Whether hindering or preventing acquisition of that milk by customers from supermarket operator—Whether direct effect required—Trade Practices Act 1974 (Cth), s. 45D(1)(b).

Decisions

MASON C.J. This appeal raises an important point of construction concerning s.45D(1)(b) of the Trade Practices Act 1974 ("the Act"), the constitutional validity of which was considered by this Court in Actors and Announcers Equity Association v. Fontana Films Pty. Ltd. (1982) 150 CLR 169. Section 45D(1)(b) provides:

"Subject to this section, a person shall not, in concert with a second person, engage in conduct that hinders or prevents the supply of goods or services by a third person to a fourth person (not being an employer of the first-mentioned person), or the acquisition of goods or services by a third person from a fourth person (not being an employer of the first-mentioned person), where - ... (b) the fourth person is a corporation and the conduct is engaged in for the purpose, and would have or be likely to have the effect, of causing -

(i) substantial loss or damage to the business of the fourth person or of a body corporate that is related to that person; or

(ii) a substantial lessening of competition in any market in which the fourth person or a body corporate that is related to that person supplies or acquires goods or services."

2. As is at once evident from the complexity of the section, it is susceptible of a variety of distinct and different applications (see Actors Equity, per Gibbs C.J. at p 179, Stephen J. at pp 189-190, Mason J. at pp 200-201 and Brennan J. at p 219). In this appeal, it was argued that the appellants engaged in conduct which constituted a hindering of the acquisition rather than the supply of goods. It is necessary to describe the appellants' conduct in a little detail so that the relevant "persons" and their interrelationship for the purposes of the section may be identified.

3. The first appellants are all New South Wales milk vendors who, according to a zoning system, sell pasteurized milk in designated regions of New South Wales to retail distributors such as supermarkets. As a result of this system of regulation, a vendor in a designated region is the only conduit for the supply of New South Wales milk in that region. As far as the supply of New South Wales milk is concerned, that vendor has a regional monopoly. No two New South Wales milk vendors overlap in terms of their sales region. The second appellant is the Amalgamated Milk Vendors Association Inc. which is incorporated under the Associations Incorporation Act 1984 (N.S.W.).

4. The respondent conducts a chain of supermarkets in New South Wales at which pasteurized milk is offered for sale to supermarket customers. It follows from what has already been said about the New South Wales system of milk distribution that such supermarkets obtain their supplies of New South Wales milk from that vendor who, under the zoning system, has been designated to distribute milk in the region in which a particular supermarket is situated. The respondent sought and obtained additional supplies of pasteurized milk for sale in its supermarkets from Victorian milk suppliers. These supplies, it appears, were able to be obtained for a cheaper price than New South Wales milk. Evidence was led in the courts below, however, that the quantity of Victorian milk available for sale in New South Wales was limited.

5. During the week of 3 August 1987, the first appellants withheld their supplies of milk from a number of the respondent's supermarkets, ceasing this conduct only upon the granting of an interlocutory injunction in the Federal Court. Burchett J., at first instance, found that the action of the first appellants was carried out in concert with the second appellant. That finding was not challenged either in the Full Court or in this appeal. His Honour held that the conduct of the first appellants was not in breach of s.45D(1) because it did not entail a direct interference with the acquisition of goods by customers of the respondent's supermarkets.

6. The Full Court of the Federal Court by majority (Sheppard and Wilcox JJ.; Spender J. dissenting) allowed an appeal. The majority found that the concerted conduct of the first appellants hindered the acquisition of milk by customers of the respondent's supermarkets and was conduct engaged in for the purposes of, and was likely to have the effect of, causing substantial loss or damage to the respondent's business so as to contravene s.45D(1)(b) of the Act. The purpose and effect of the appellants' conduct, as found by the Full Court, was not in question in this Court.

7. The Full Court's analysis of the conduct complained of was predicated on an identification of the relevant "persons" for the purposes of s.45D(1)(b) as follows: each of the first appellants is a "first person"; each other milk vendor is a "second person", as is the second appellant; customers of the respondent's supermarkets are "third persons"; and the respondent is the "fourth person". It seems to have been accepted in the Full Court that the relevant "goods", the acquisition of which was held to have been hindered, were pasteurized milk. These characterizations give form to s.45D(1)(b) and identify the relevant "persons" for the purposes of this Court's consideration of the true operation of the section.

8. The respondent urged the Court to adopt a literal reading of s.45D(1)(b), the approach favoured by a majority of the Full Court of the Federal Court. A mechanical substitution of the persons, as identified, into the terms of that section leads to the result that all the elements which that section requires to be satisfied are, prima facie, satisfied. The withdrawal of a regular supply of milk by a vendor, in circumstances where that vendor was the only source of New South Wales milk, to a retail seller of milk in New South Wales who had hitherto relied (in substantial part, at least) on that supply, was bound to affect that retailer's capacity to obtain sufficient supplies of milk to satisfy the traditional demands of its customers. The irresistible inference is, so the argument runs, that, by pressure of demand and inadequacy of supply, those customers would, as a consequence, be hindered in their attempts to acquire milk from the respondent's supermarkets. It was not disputed in this Court that the likely effect of such conduct and a purpose of the first and second appellants was the causing of substantial loss or damage to the respondent.

9. The appellants contended that the Court should not follow the literal approach to s.45D(1)(b) urged by the respondent but should construe that section and locate its sphere of operation by reference to the structure of the Act. More specifically, the appellants focused on the question of whether hindrance to a third person need be direct or whether indirect hindrance is sufficient to enliven the operation of s.45D(1).

10. Senior counsel for the appellants submitted that the Act establishes a regime for the curial treatment of primary and secondary boycotts and that s.45D(1) is designed to deal with secondary boycotts while s.45(2)(a)(i) and (b)(i), which picks up the definition of "exclusionary provision" as set out in s.4D(1) of the Act, is designed to deal with primary boycotts. The appellants then argued, and invited the Court to accept the conclusion, that these sections complement each other and should be mutually exclusive in their operation. That is to say that, if certain conduct which could be classified as a primary boycott did not involve the making of or giving effect to an exclusionary provision so as not to contravene s.45(2)(a)(i) or (b)(i), it should not be open to a party to attempt to impugn that same conduct by recasting it so that it satisfied the elements of s.45D(1)(b) and thereby issued in liability for breach of that section. This argument assumes that the concepts of primary and secondary boycott are susceptible of ready definition and that no difficulty attends the task of identifying a particular course of conduct as constituting either a primary or a secondary boycott. More fundamentally, it also assumes that the sections should be understood, interpreted and applied by reference to these extra-statutory concepts.

11. The appellants maintained that the concepts of primary and secondary boycott are not difficult of expression and may be understood simply by way of example. Thus, they submitted, a primary boycott comprehends a situation where A and B hinder C whereas a secondary boycott comprehends a situation where A and B hinder C in its dealings with D. There exists a vigorous difference between the parties in relation to the secondary boycott example, the appellants maintaining that any hindrance to C must be direct and not consequential.

12. On the facts of the present case, the appellants submitted that their conduct in withholding supplies of pasteurized milk from the respondent constituted a classic primary boycott of the respondent and that, if this conduct offended any sections of the Act, it could offend only those sections designed to treat primary boycotts. In the event, as accepted by the Full Court and not in dispute in this Court, the conduct of the appellants did not constitute a breach of s.45(2)(a)(i) or (b)(i) because of the absence of competition between the appellants, as required by s.4D(1). That section provides:

"A provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, shall be taken to be an exclusionary provision for the purposes of this Act if -

(a) the contract or arrangement was made, or the understanding was arrived at, or the proposed contract or arrangement is to be made, or the proposed understanding is to be arrived at, between persons any 2 or more of whom are competitive with each other; and

(b) the provision has the purpose of preventing, restricting or limiting - (i) the supply of goods or services to, or the
acquisition of goods or services from, particular persons or classes of persons; or

(ii) the supply of goods or services to, or the acquisition of goods or services from, particular persons or classes of persons in particular circumstances or on particular conditions,

by all or any of the parties to the contract, arrangement or understanding or of the proposed parties to the proposed contract, arrangement or understanding or, if a party or proposed party is a body corporate, by a body corporate that is related to the body corporate."

13. Consequently, the appellants submitted that, as s.45(2)(a)(i) and (b)(i), which was directed to conduct of the kind engaged in by the appellants, did not impose a liability on them, it would be both wrong and anomalous to interpret another section of the Act as imposing such a liability on them when it was directed to conduct of a different kind.

14. Expressed in terms of the appellants' example, the argument presented was that the appellants' conduct was susceptible of analysis only in terms of A and B hindering C and that s.4D(1) (as picked up by s.45(2)(a)(i) and (b)(i)) reflects such a tripartite structure. Accordingly, it was argued that the appellants' liability could be tested only by reference to this section and not by reference to s.45D(1)(b) which adopts a quadripartite structure, coinciding with the secondary boycott example, presented by the appellants.

15. A crucial premise of this argument is that s.4D(1) is only capable of reflecting a tripartite structure. This assertion must be tested. To take the example of an exclusionary provision which has the purpose of preventing, restricting or limiting the acquisition of goods or services from a particular person (s.4D(1)(b)), the appellants would argue that the only situation which would be covered by this section is where A and B, although in competition with each other, together agree to no longer themselves acquire goods from C, this being a situation in which only three parties are involved. This interpretation requires one to read into s.4D(1)(b) the word "directly" as governing "preventing, restricting or limiting". Unless one so restricts s.4D(1)(b), there is no reason why it could not also cover situations involving four or more persons. For example, A and B could prevent, restrict or limit the acquisition of goods or services from C by impeding a fourth party, D, from acquiring goods or services from C or, alternatively, by inducing D not to acquire goods or services from C. Unless there are cogent grounds for reading into the section the restriction urged by the appellants, this illustration sits uneasily with their basic contention that s.4D(1) should be confined to cover situations involving only three persons. That contention necessarily relies as well on the Court accepting that, in truth, the factual circumstances of the case in hand involved only three persons and that the customers of the respondent should be disregarded as merely incidental participants.

16. The appellants argued that a similar restriction must be read into s.45D(1)(b) so that only conduct which directly hinders C from acquiring from or supplying to D is offensive to that section. Thus, it was submitted that, if the milk vendors had physically picketed the respondent's stores so as to directly hinder the acquisition by the respondent's customers of pasteurized milk, then this would have constituted a contravention of s.45D(1)(b), assuming always, of course, that the other elements of that section were satisfied. This was contrasted with the circumstances of the present case where the respondent's customers were hindered in their acquisition only as an indirect consequence of the appellants' conduct, the direct consequences of which were felt by the respondent. Indeed, senior counsel for the appellants conceded that the respondent's customers were hindered but not, he argued, in the relevant, i.e. direct, sense. In this way, it was argued that there were only three persons relevantly involved in the circumstances of this case.

17. I turn now to consider the appellants' two related arguments: (i) whether there is to be found any suggestion in the structure of the Act that s.45(2)(a)(i) and (b)(i) is designed to deal exclusively with primary boycotts whereas s.45D(1) is designed to deal with secondary boycotts, that is, that the sections complement each other; and (ii) whether there is any basis for confining the operation of those two sections by reading into both of them the concept of direct impact of conduct on the relevant persons nominated by the respective sections.

18. If the construction urged by the appellants were correct, one would expect that any differences between the two sections would be minor and explicable only by reference to the different types of conduct which the appellants say the sections were designed to address. Even the most cursory of comparisons of the two sections reveals, however, significant differences and the different foci of the sections in question.

19. Section 45(2)(a)(i) and (b)(i) is aimed at preventing a corporation from engaging in the conduct proscribed by that section whereas s.45D(1) is designed to protect corporations from being the victims of the type of conduct proscribed by s.45D(1). The sections focus on the constitutionally central subject of a corporation as a participant, on the one hand, and a victim, on the other. The fact that, in the first instance, a corporation might also be the victim and, in the second instance, a corporation might be a participant is incidental to the operation of those sections. Looking at the operation of the sections together, they do not proscribe a corporation from engaging in conduct of one type, in the case of one section, and of another type, in the case of the other section. One might have expected this if the two sections were together designed to complement each other in the manner suggested by the appellants. It is no doubt true that these sections are directed to different spheres of activity but these differences are to be accounted for by reference to the participants in such activity rather than by reference to concepts of primary and secondary activity. In the case of s.45(2)(a)(i) and (b)(i), one of the parties to an agreement containing an exclusionary provision must be a corporation and liability under that section will only attach to that party. In the case of s.45D(1), there is no requirement that either of the parties acting in concert be a corporation and both of the parties will be liable if the other elements of that section are satisfied. Similarly, in the case of s.45(2)(a)(i) and (b)(i), the victim(s) need not be a corporation. The definition of "exclusionary provision" refers to particular persons or classes of persons. In the case of s.45D(1), protection is directed to corporations and any protection to persons other than a corporation as a result of the operation of that section is merely incidental: see Actors Equity, at p 201.

20. A further lack of symmetry between the sections is evidenced by the fact that the "likely effect" of any exclusionary provision is not taken into account in considering a breach of s.45(2)(a)(i) or (b)(i), the purpose for making the exclusionary provision being the key concept. Section 45D(1), on the other hand, is not only concerned with the purpose of any concerted conduct but, as an essential element of liability, also requires that the likely effect of such conduct be the causing of substantial loss or damage to the business of the corporation. Further, the purpose referred to in s.4D(1) is required by s.4F(a)(ii) to be "a substantial purpose". In the case of s.45D(1), there is no requirement that the purpose for engaging in the proscribed conduct be "a substantial purpose", it being sufficient if it was one of several purposes: s.45D(2).

21. Section 4D(1)(b) speaks in terms of prevention, restriction or limitation. Section 45D(1) speaks in terms of prevention or hindrance. While it is not necessary to consider any differences in meaning or degree between the concepts of restriction or limitation, on the one hand, and hindrance, on the other, the legislature's use of different terminology does not support the symmetrical construction of the sections urged by the appellants or an interpretation that the two sections are complementary.

22. All these differences also serve to counter the suggestion by senior counsel for the appellants that where, as, it was said, will often be the case, the "target" of a primary boycott has its own customers, that primary boycott becomes a secondary boycott, thereby rendering the proscription of exclusionary provisions in s.45(2)(a)(i) and (b)(i) redundant. This argument must be rejected. It is not the case that every instance of liability under s.45(2)(a)(i) or (b)(i) will also result in liability under s.45D(1). The differences between the sections which have been referred to demonstrate that proposition. If it be the case that a party has, by the same conduct, breached ss.45(2)(a)(i) or (b)(i) and 45D(1), so be it. If, as in the present case, a party does not incur liability under one section, the only conclusion that can be drawn is that its conduct did not offend the policy to which that section gave effect, not that absence of liability under one section where some but not all of the elements of that section are satisfied means absence of any liability whatsoever under any other section of the Act.

23. Further, it is of no little significance that the Act eschews the use of the phrases "primary boycott" and "secondary boycott", even in the form of headings to ss.45 and 45D. While it is true that this Court in Actors Equity referred to s.45D(1) compendiously as addressing the situation of a secondary boycott, neither that reference nor anything else said in that case gave definitional content to that concept. Nor could an argument be gleaned from that case that s.45(2)(a)(i) and (b)(i) and s.45D(1) complement each other and provide for mutually exclusive treatment of primary and secondary boycotts respectively.

24. The phrase "secondary boycott" was said, even by 1939, to have "such an uncertain meaning and (was) so frequently applied to such diverse situations" that it was not used in the First United States Restatement on Torts: Restatement of the Law of Torts, (1939), para. 801, p 152. Indeed, no certainty attaches to the basic concept of "boycott". Its nature is "difficult to identify with exactitude owing to loosenesses in terminology": Sykes, Strike Law in Australia, 2nd ed. (1982), p 54. In the absence of a statutory definition or direction to construe ss.45(2)(a)(i) and (b)(i) and 45D(1) by reference to the concepts of primary and secondary boycott, it would seem undesirable to import into the Act as tools of construction phrases of no settled meaning and indeterminate ambit. Far from assisting in the process of interpretation, one would think that reference to such phrases would be apt to render even more complex sections which are avowedly already so.

25. The Explanatory Memorandum to the Trade Practices Amendment Bill 1977 which introduced ss.45(2)(a)(i) and (b)(i) and 45D(1) is relied on by the appellants. Paragraph 10 stated:

"The Bill contains special provisions for the prohibition of collective boycotts. Collective primary boycotts (where the boycott seeks to restrict the dealings of the parties with the target person) are prohibited as 'exclusionary provisions' (defined in new section 4D (clause 6)) - new section 45(2)(a)(i) and 45(2)(b)(i). Collective secondary boycotts (where the boycott seeks to restrict the dealings of persons, other than the parties, with the target person) are prohibited where they have or are likely to have a prescribed effect - new section 45D."

The descriptions in this paragraph provide a tightly compressed statement of the type of conduct proscribed by the sections. In so far as the Explanatory Memorandum identifies s.45(2)(a)(i) and (b)(i) with "primary boycotts" and s.45D with "secondary boycotts", for the purposes of the statute, a primary boycott may be said to be any conduct which contravenes s.45(2)(a)(i) and (b)(i) and a secondary boycott any conduct which contravenes s.45D. Beyond this, which is simply no more than saying that the Act proscribes conduct when the elements of those two sections are satisfied, the concepts "primary" and "secondary" boycott are of no utility. Section 45D(1) is not a law about secondary boycotts simpliciter. As I said in Actors Equity (at p 200), such a description is inadequate. The true character of s.45D(1)(b)(i) is to be ascertained from an analysis of its legal operation according to its terms: at p 201. The fallacy of the appellants' argument is that it seeks to import an external notion or understanding of the concepts of primary and secondary boycott and to confine the operation of ss.45(2)(a)(i) and (b)(i) and 45D(1) by reference to that external understanding. For the reasons I have already outlined, that is neither an appropriate nor a desirable course.

26. Nor do I see any basis for restricting the meaning of either s.4D(1)(b) or s.45D(1) by reading into those sections the word "directly" to govern "preventing, restricting or limiting" in the case of s.4D(1)(b), or "hinders or prevents" in the case of s.45D(1). The appellants submitted that one should do so for two reasons.

27. First, it was argued that introducing the word "directly" to govern those sections would allow ss.45(2)(a)(i) and (b)(i) and 45D(1) to have a complementary operation. As a comparison of the sections clearly illustrates, however, they lack symmetry and are directed to different circumstances. I am not able to detect from the provisions of the Act any legislative intent that the sections should be construed so as to complement each other. To introduce a significant limitation on the operation of s.45D(1) would also be inconsistent with the wide, remedial and protective ambit that section is clearly intended to have - such an intention being evident both from the many different situations to which s.45D(1) is capable of applying and the fact that, unlike the balance of the Act, s.4F(b) does not apply to s.45D(1) so that the purpose for engaging in any impugned conduct under that section need not be a substantial purpose.

28. Moreover, s.45D(1) falls within Pt IV of the Act, the general purpose and scope of which have been described by Deane J. as containing "provisions which proscribe and regulate agreements and conduct and which are aimed at procuring and maintaining competition in trade and commerce": Refrigerated Express Lines (A/asia) Pty. Ltd. v. Australian Meat and Live-stock Corporation (No. 2) (1980) 44 FLR 455, at p 460; 29 ALR 333, at p 340. The evident purpose and policy underlying this Part of the Act recommends a broad construction of its constituent sections. In a similar context, the United States Supreme Court has stated:

"It has been said, of course, that the antitrust laws, and Robinson-Patman in particular, are to be construed liberally, and that the exceptions from their application are to be construed strictly. ... Because the (Robinson-Patman) Act is remedial, it is to be construed broadly to effectuate its purposes": Abbott Laboratories v. Portland Retail Druggists Assn., Inc. (1976) 425 US 1, at pp 11-12.

(See also United States v. McKesson and Robbins (1956) 351 US 305, at p 316; Perkins v. Standard Oil Co. (1969) 395 US 642, at p 647.) Section 45D(1) may similarly be described as being of remedial legislative character and accordingly "should be construed so as to give the fullest relief which the fair meaning of its language will allow": Bull v. Attorney-General for New South Wales (1913) 17 CLR 370, per Isaacs J. at p 384. See also Samuel v. Newbold (1906) AC 461, at p 467; Wilson v. Moss (1909) 8 CLR 146, at p 165; Holmes v. Permanent Trustee Co. of New South Wales Ltd. (1932) 47 CLR 113, at p 119; Waugh v. Kippen (1986) 160 CLR 156, at p 164. My comments in another context are equally applicable to this case:

"It is reasonable to impute to Parliament an intention that the provision, which is a protective provision, be given 'the widest possible scope'": Day and Dent Constructions Pty. Ltd. v. North Australian Properties Pty. Ltd. (1982) 150 CLR 85, at p 108.

This is so even though a person or a body corporate contravening the section will be liable for pecuniary penalties of $50,000 and $250,000 respectively (s.76): cf. Waugh v. Kippen, at pp 164-165.

29. I acknowledge that s.45D(1) does not in terms proscribe conduct which hinders or prevents the supply of goods or services by a fourth person (target corporation) to a third person (customer) so that the proscription of conduct affecting the acquisition by a customer from such a corporation is not accompanied by a proscription of reciprocal conduct, that which affects supply by such a corporation to a customer. But this is not a sufficient reason for reading down the language of the sub-section and giving it a meaning which differs from its literal meaning. When a provision in a statute is intended to be protective and remedial and to that end proscribes certain conduct, strong reasons are required to justify an interpretation of the provision which would narrow the scope of the provision and exclude conduct falling within its literal terms. The fact that s.45D(1) does not in terms proscribe conduct which has the effect of hindering the acquisition or supply of goods by a target corporation (fourth person) from or to a customer (third person) does not mean that such conduct is necessarily excluded from the section's operation. If that same conduct falls within another description of conduct expressly proscribed by s.45D(1), because, for example, that description is simply the reciprocal expression of the relevant conduct, then such conduct will be in breach of the section.

30. The second reason advanced by the appellants in support of restricting the operation of s.45D(1) through the introduction of the word "directly" was that several other sections in Pt IV of the Act use the words "directly or indirectly" in relation to conduct covered by those sections. From this the Court is invited to infer that the absence of the phrase "directly or indirectly" in s.45D(1) means that the reference in that section to "hinders or prevents" must be a reference to "directly hinders or prevents". While there is some force in this submission, the interpretation is equally open that an unqualified reference to hindrance or prevention means hindrance or prevention of any kind, whether direct or indirect. The evident wide scope of s.45D(1) and the broad interpretation which should be afforded to that section together militate against restricting its terms and provide a strong reason for inclining to the wider interpretation.

31. Further, it cannot be, and indeed was not, suggested in argument that the notion "direct" is inherent in either of the words "hinder" or "prevent". "Hinder" has been construed in England "in the general sense of in any way affecting to an appreciable extent the ease of the usual way of supplying the article" (emphasis added): Tennants (Lancashire) Limited v. C.S. Wilson and Company Limited (1917) AC 495, per Lord Dunedin at pp 513-514; Peter Dixon and Sons Ltd. v. Henderson, Craig and Co. (1919) 2 KB 778, at p 786. What was there said in relation to hindrance of supply would apply with equal force to hindrance of acquisition. The comments of Gibbs J. relating to the words "prevent or hinder" in Reg. v. Bell; Ex parte Lees (1980) 146 CLR 141, at pp 147-148, must be seen in the context of that case. As his Honour observed, a broad construction would have effected a very drastic interference with ordinary civil rights: at p 148. There is no similar reason for rejecting a broad interpretation of those words in this case. As has been said, such an interpretation is entirely consonant with the purpose of the section.

32. It follows that I agree with the literal approach to s.45D(1)(b) urged by the respondent in this case and accepted by a majority of the Full Court of the Federal Court. Accordingly, I would dismiss the appeal.

BRENNAN J. The Chief Justice has described the facts out of which these proceedings arise. As Deane J. points out, those facts appear prima facie to wear the complexion of a contravention of s.45D(1)(b) by the appellants in hindering the acquisition of Victorian milk by Jewel Food Stores Pty. Limited ("Jewel") from Midland Milk Pty. Limited and Davids Holdings Pty. Limited, the Victorian suppliers, but that was not the case which Jewel sought to make in the Federal Court. The only case which Jewel sought to make was that the conduct of the appellants in withholding supplies of New South Wales milk from Jewel was conduct that hindered or prevented the acquisition of milk by Jewel's customers from Jewel. The question is whether the withholding of goods from a corporation whose business is the purchase and resale of goods amounts to conduct which hinders or prevents the acquisition by the corporation's customers of the goods withheld. As the corporation's customers are unable to obtain the goods withheld, there is a sense in which acquisition by customers of those goods can be said to be hindered or prevented by conduct which consists merely in the hindering or preventing of supply of those goods by the corporation. If that be the sense in which the phrase "hinders or prevents ... the acquisition of goods" is used in s.45D(1), then s.45D(1) has the effect of proscribing conduct which hinders or prevents the supply of goods or services by "a fourth person" to "a third person", though the draftsman of the sub-section has been astute not to bring that conduct into the net of proscription.

2. Section 45D(1) proscribes conduct which hinders or prevents supply to a target corporation ("a fourth person") or which hinders or prevents acquisition from a target corporation; it does not proscribe conduct which hinders or prevents acquisition or supply by a target corporation. True it is that supply and acquisition are reciprocal activities but, as s.45D(1) is expressed to relate only to supply to and acquisition from a target corporation, it distinguishes between those activities and the activities which are reciprocal to them. To give effect to that distinction, it is necessary to exclude from the net of s.45D(1) conduct which impedes an activity mentioned in the sub-section (supply to or acquisition from a target corporation) merely by impeding the reciprocal activity which the sub-section does not mention (acquisition or supply by a target corporation). I would construe s.45D(1) as requiring proof of conduct other than mere hindering or preventing of the supply of goods by the target corporation before it can be said that acquisition of those goods and services from the target corporation is hindered or prevented.

3. The most obvious example of conduct falling within this part of the sub-section is conduct which is calculated to deter customers of a target corporation's business from taking steps to acquire goods or services from the target corporation, and it may be that that is the true scope of this part of the sub-section. It is unnecessary to decide that broad question in this case. It is sufficient to hold that conduct which prevents the supply of goods by a target corporation, without more, does not amount to the hindering or preventing of acquisition of those goods from a target corporation.

4. In this case the appellants took no steps to hinder the acquisition by Jewel's customers of whatever goods Jewel had available for sale; the appellants simply failed to supply Jewel with New South Wales milk which Jewel could have supplied to the customers who sought it. For the reason stated, this did not amount to conduct which, in the sense in which s.45D(1) uses the terms, hindered or prevented Jewel's customers from acquiring New South Wales milk - or any other milk, for that matter - from Jewel: there was simply no New South Wales milk available for acquisition.

5. The result is that the appeal must, in my view, be allowed. In so saying, I would not wish to embrace the argument that s.45D is to be construed in the light of a preconception that it deals only with secondary boycotts or to presume that it is to be read restrictively in the light of other provisions of the Act. The conclusion at which I have arrived is founded solely on the terms of s.45D(1) itself and the nature of the conduct to which it relates. Had the case been framed in the way to which Deane J. refers, the respondents may well have succeeded. That case was not put and the requisite findings of fact were not made.

6. I would therefore allow the appeal.

DEANE J. The appellants are the Amalgamated Milk Vendors Association Inc. ("the Association") and a number of New South Wales milk vendors who are members of the Association. They acted in concert to place pressure upon Jewel Food Stores Pty. Limited ("Jewel") for the purpose of persuading it to cease stocking Victorian pasteurized milk in its New South Wales stores. They did this by withholding supplies of New South Wales pasteurized milk from Jewel while it continued to stock the Victorian product. In other words, they combined to withhold New South Wales pasteurized milk from Jewel to force it to cease acquiring and selling what had become a competing product in the relevant New South Wales market. The question in the case is whether their conduct contravened the provisions of s.45D of the Trade Practices Act 1974 (Cth) ("the Act").

2. For present purposes, s.45D(1) reads as follows:

"... a person shall not, in concert with a second person, engage in conduct that hinders or prevents the supply of goods ... by a third person to a fourth person ... or the acquisition of goods ... by a third person from a fourth person ... where - ...

(b) the fourth person is a corporation and the conduct is engaged in for the purpose, and would have or be likely to have the effect, of causing - (i) substantial loss or damage to the business of the fourth person ...; or

(ii) a substantial lessening of competition in any market in which the fourth person ... supplies ... goods".

Contravention of the section renders a person "being a body corporate" liable to a pecuniary penalty (s.76) but not "criminal proceedings" (s.78).

3. Analysis of the facts of the case and of the provisions of s.45D leaves me with a clear prima facie impression that, subject to specific findings about relevant substantial loss or damage and substantial lessening of competition in a relevant identified market, the conduct in concert of the appellant milk vendors and their Association constituted a classic case of one of the kinds of conduct which s.45D was primarily intended to outlaw, namely, conduct by a person in concert with "a second person" to force a trader ("a third person") to cease acquiring and stocking a particular product of "a fourth person" (who or whose product can be described as the "target" of the conduct) in circumstances where the conduct is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the supplier of the product or substantial lessening of competition in a relevant market. Seen in terms of conduct in concert targeted at the Victorian product or a Victorian corporate supplier, the case prima facie falls within both the obvious intended area of operation and the literal meaning of the words of s.45D(1). The point can be demonstrated by reference to the conduct of any one vendor. Such a vendor (i.e. "a person"), "in concert with a second person" (i.e. the other milk vendors and the Association), "engage(d) in conduct that hinder(ed) ... the acquisition of goods" (i.e. the Victorian product) "by a third person" (i.e. Jewel) "from a fourth person" (i.e. the Victorian corporate suppliers, Midland Milk Pty. Limited and Davids Holdings Pty. Limited) "where ... the fourth person (was) a corporation and the conduct (was) engaged in for the purpose ... of causing ... substantial loss or damage to the business of the fourth person ... or ... a substantial lessening of competition in (a) market in which the fourth person ... supplies ... goods" (semble, the relevant local wholesale market for pasteurized milk).

4. One subject of possible argument about whether the appellants' conduct, analyzed as in the above structure, constituted an infringement of s.45D is the question whether the conduct of the milk vendors could properly be said to hinder or prevent the acquisition of the Victorian product by Jewel. If the pressure upon Jewel had succeeded and Jewel had ceased to stock Victorian pasteurized milk, the action in concert would have relevantly prevented the acquisition by Jewel of the Victorian product. The fact that it did not reach that stage because Jewel did not capitulate is not, however, the end of the matter. The effect of the concerted action of the milk vendors and their Association was, while it continued, that Jewel sustained and would continue to sustain a significant economic disadvantage for so long as it persisted in stocking the Victorian product. In these circumstances, it seems to me that, in the context of the Act, the actions of the vendors and their Association hindered the acquisition of the Victorian product by Jewel. Conduct which significantly disadvantages a trader because, and for so long as, it stocks a particular product hinders the acquisition by the trader of that product. It would be an illogical and unduly constrictive construction of s.45D(1) to hold that the imposition of economic damage upon a trader to force it to cease stocking a competitor's product is not "conduct that hinders ... the acquisition of" that product within the meaning of s.45D unless and until the conduct has succeeded to the extent of actually preventing the trader from acquiring and supplying it.

5. There is, however, a serious difficulty about the above analysis of the appellants' conduct for the purposes of the present appeal. It is that, possibly for good reasons, the case was not argued in the courts below on the basis that it should be seen as one where the conduct in concert hindered or prevented the acquisition by Jewel of Victorian pasteurized milk. Consequently, the courts below neither dealt with the case on that footing nor made some relevant findings in relation to market identification or in relation to intended or likely substantial loss or damage to Victorian corporate suppliers. Instead, in conformity with the manner in which the case was there presented and argued, the Full Court of the Federal Court approached the case on the basis that the issue was whether the milk vendors and the Association had contravened s.45D by acting in concert to withhold supply of New South Wales milk in that, by so doing, they had hindered or prevented the acquisition of New South Wales milk from Jewel by its customers.

6. As a matter of the literal effect of the words of s.45D(1), the conduct in concert comes within the prohibition of the sub-section even if the ulterior purpose of hindering or preventing Jewel from selling Victorian milk to its New South Wales customers be ignored. The acts in concert of the milk vendors were intended to bring pressure upon Jewel by preventing its customers from acquiring New South Wales milk from it with the consequence that it would lose sales which it would otherwise have made to some of the customers who wished to buy milk from it either because those customers insisted upon New South Wales milk or because of the inadequacy of the supplies of Victorian milk. It follows that the hindering or preventing of the acquisition of New South Wales milk by Jewel's customers from Jewel is properly to be seen as an immediate purpose of those acts in concert. It was also their immediate effect. In these circumstances, it is possible to say that, as a matter of the plain words of s.45D, each milk vendor ("a person"), in concert with the other milk vendors and the Association ("a second person"), engaged in conduct that hindered or prevented the acquisition of New South Wales milk by Jewel's customers ("a third person") from Jewel ("a fourth person" which "is a corporation"). In this Court, it was not disputed that that conduct would "have or be likely to have the effect" of causing substantial loss or damage to the business of Jewel. Nor was it sought to challenge the finding of the Full Court of the Federal Court that the conduct was "engaged in for the purpose" of causing such substantial loss or damage. The reason for that is presumably to be found in s.45D(2) which provides that "a person shall be deemed to engage in conduct for a purpose mentioned in (s.45D(1)) if he engages in that conduct for purposes that include that purpose". Obviously, a purpose of the conduct was to cause such damage to the business of Jewel by withholding supplies of New South Wales pasteurized milk that Jewel would succumb to the pressure and stock only New South Wales milk.

7. As I have indicated, I consider that, in a case such as the present where a breach of s.45D is alleged by reason of conduct in concert aimed at forcing the product of another person off the market, the preferable starting point lies in an identification of the competing product as the ultimate or ulterior "target" of the conduct in concert and in identifying, on that basis, the content of the relevant structure for the purposes of that section. In the present case, that ultimate or ulterior target was the Victorian product. However, in circumstances where the case was not presented on that basis in the courts below with the result that some relevant factual findings as to markets and loss or damage were not made, it would be wrong to sustain the decision of the Full Court of the Federal Court by reliance upon it. That being so, the critical question on the appeal is whether the conduct of the appellants breached s.45D by reason of the alternative structure which identifies Jewel, the entity at which the conduct constituting the hindering or preventing was immediately directed, as itself the target of the conduct. Put differently, the ultimate question is whether s.45D should be construed as confined to cases which are of the kind at which the section would seem to be primarily directed or whether the words of the section should be given their full scope and effect.

8. There is considerable force in the argument which is developed in the judgment of Spender J. in the Federal Court to the effect that s.45D should, in its context in the Act, be construed as applying only to cases which can properly be seen as involving what is often loosely described as a "secondary boycott". On the other hand, there is nothing unusual about a literal construction of a statutory prohibition which has the effect that one set of conduct can be analyzed in a number of different ways, each of which involves a contravention of the relevant provision. In such a case, the one set of conduct will constitute but one contravention of the provision notwithstanding that the different analyses disclose that the conduct breaches the provision for a number of distinct reasons (cf., as to the case where particular conduct breaches different statutory provisions, s.76(3) of the Act). Ultimately, and after some vacillation, I have come to the conclusion that the literal effect of the words of s.45D should not be confined in a way which would exclude from the scope of the section any conduct which does not satisfy some superimposed requirement ascertained by reference to a perception of the kinds of conduct with which the section is primarily concerned. I am influenced in reaching that conclusion by a number of considerations. For one thing, I do not think it is possible to define with any precision the limits of those kinds of conduct. Certainly, such a precise definition is not to be found in the phrase "secondary boycott" which, as the authors of the first edition of the Restatement commented in explaining why they had avoided its use, "has such an uncertain meaning and is so frequently applied to such diverse situations" (Restatement of the Law of Torts, (1939), Ch 38, para. 801, p 152). For another thing, I am not persuaded, on balance, that it is possible to discern in s.45D, read in its context in the Act, a clear legislative intent that the section should be so confined. In that regard, I am influenced by the provision of s.45D(2) which clearly indicates that the reference to "the purpose" in s.45D(1) should not be construed as referring only to what can be identified as the "real", "dominant" or "ultimate" purpose.

9. If the provisions of s.45D are not to be confined to fit within some preconceived notions of what constitute paradigm cases of secondary boycott, there is not, in my view, any basis for confining them in a way which would negative the decision of the Full Court of the Federal Court in the present case. Once such preconceived notions are put to one side, there remain two main characterizing features of the conduct in concert which s.45 proscribes. The first lies in the focus, in the primary identification (in the opening words of s.45D(1)) of the conduct, upon its effect upon relations between persons other than those acting in concert: the conduct must hinder or prevent the supply or acquisition of goods or services by "a third person" to or from "a fourth person". The second lies in the superimposed requirement of both a purpose and a likely effect of an essentially ulterior or consequential kind. It does not suffice that the conduct hinders or prevents the supply or acquisition of goods or services by the third person to or from the fourth person. It must be engaged in for the purpose and have or be likely to have the effect of either causing substantial loss or damage to the business of the fourth person or causing a substantial lessening of competition in a market in which the fourth person trades. When it is viewed in the light in which the Full Court viewed it, the conduct in concert in the present case clearly exhibited the first of those two characterizing features. The focus of the primary identification of the conduct in concert was upon its effect in hindering or preventing the acquisition of New South Wales milk by Jewel's customers from Jewel, they being persons other than those acting in concert. It was engaged in for the purpose and was likely to have the ulterior or consequential effect of causing substantial loss or damage to the business of Jewel. The fact that there was a further and even more remote purpose or motive - namely, that the actuality or likelihood of that substantial loss or damage would cause Jewel to cease to stock the competing Victorian product with the result that the competition of that product in the New South Wales market was eliminated or reduced - did not negative the existence of those characterizing features or take the case outside the clear words of s.45D.

10. The result is that, while I would have thought that the case should be approached on the basis that the primary question to be considered was whether there was a breach of s.45D by reason of conduct in concert which hindered or prevented the acquisition or supply by Jewel of the competing Victorian product, I consider that the case also comes within s.45D if the conduct in concert is identified as being conduct which hindered or prevented the acquisition of New South Wales milk by Jewel's customers from Jewel.

11. The appeal should be dismissed.

DAWSON J. I agree, for the reasons given by Brennan J., that this appeal should be allowed. The prohibition contained in s.45D(1)(b) of the Trade Practices Act 1974 (Cth) against conduct by one person in concert with a second person that prevents the acquisition of goods by a third person from a fourth person (being the target corporation) is not contravened merely by the circumstance that the target corporation has none of the goods which the third person wishes to acquire. That is so even if the unavailability of the goods is itself the result of conduct of the first person in concert with a second in withholding supply of the goods to the target corporation. Something more is required before it can be said that acquisition of the goods by a third person (a customer) from the target corporation has been hindered or prevented.

TOOHEY J. The respondent, Jewel Food Stores Pty. Limited, applied in the Federal Court for an order, inter alia, restraining the appellants and each of them from acting in breach of s.45D(1) of the Trade Practices Act 1974 (Cth) ("the Act"). The breach was said to have resulted from the appellants engaging in conduct that hindered or prevented:
(a) the supply of pasteurised milk to the respondent (the

"fourth person") by a number of milk vendors in New South Wales (the "third person"); or

(b) the acquisition of pasteurised milk from the respondent (the "fourth person") by the respondent's customers (the "third person").

The milk vendors in question are the first appellants. They are all members of the Amalgamated Milk Vendors Association Inc. ("the Association") which is the second appellant.

2. The facts are set out in the judgment of Mason C.J.; only a brief reference to them is necessary in this judgment. At first instance Burchett J. rejected the respondent's arguments based on s.45D(1) of the Act. His Honour was of opinion that the respondent had made out a case under s.45D(1A) but that the appellants had established a defence thereto under sub-s.(1B). Accordingly the application failed. Before the Full Court of the Federal Court the respondent challenged Burchett J.'s construction of s.45D(1)(b) and his findings relevant to that paragraph. The respondent did not pursue its other claims. The respondent was successful before the Full Court (Sheppard and Wilcox JJ., Spender J. dissenting) which ordered that the appellants "be restrained ... from engaging in conduct that hinders the acquisition of pasteurised milk from the (respondent) by customers of the (respondent)". That is the order challenged on this appeal. It is not an order that the appellants be restrained from engaging in conduct that hinders the supply of pasteurised milk to the respondent by vendors in New South Wales. Nor is it an order that the appellants be restrained from engaging in conduct that hinders the acquisition by the respondent of Victorian milk from Victorian suppliers. It is an order that derives its authority from a finding by the majority that the appellants had breached s.45D(1)(b) of the Act.

3. Section 45D(1)(b), so far as it is relevant, is set out in the judgment of the Chief Justice. Paraphrased, it provides that a person shall not, in concert with another, engage in conduct that hinders or prevents the supply of goods by a third person to a fourth person or the acquisition of goods by a third person from a fourth person, where the fourth person is a corporation and the conduct is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person.

4. The question to be answered in this appeal, and the only question, is whether the conduct of the appellants in withholding their pasteurised milk from the respondent (it is accepted that each appellant acted in concert with the Association), whose business is to sell milk to its customers, constitutes conduct which hindered or prevented the acquisition of pasteurised milk from the respondent by its customers. In terms of s.45D(1)(b), the respondent is the "fourth person" and its customers the "third person". Burchett J. held (and it is not challenged) that the appellants did not engage in conduct that hindered or prevented the supply of milk by a "third person" to the respondent. They themselves withheld milk from the respondent while that company stocked Victorian milk but that did not hinder or prevent the supply of milk to the respondent by others, including Victorian suppliers. In seeking an answer to the question posed at the beginning of this paragraph, it is not enough to point to conduct that hindered or prevented the supply of milk to the respondent; it is the acquisition of milk by customers of the respondent that must be hindered or prevented.

5. Section 45D of the Act finds its place in Pt IV - Restrictive Trade Practices. As to the general scope of Pt IV, see Refrigerated Express Lines (A/asia) Pty. Ltd. v. Australian Meat and Live-Stock Corporation (No.2) (1980) 44 FLR 455, at pp 460-461; 29 ALR 333, at p 340. The origin of the section is discussed in Heydon, Trade Practices Law, (1989), p 5014. And, as the learned author points out at p 5013, liability under s.45D "depends on a certain purpose and effect" while "other parts of the legislation depend on purpose alone (ss.4D, 45E, 46) purpose or effect (ss.45, 47(10)(a)) or effect (ss.47(10)(a) (query (b)), 49, 50)". When the section was first enacted, s.45D carried the heading "Secondary boycotts". When the section was amended by Act No.207 of 1978, the heading was altered to "Boycotts", the heading the section still bears. However, the Acts Interpretation Act 1901 (Cth), s.13(3) provides:
" No marginal note, footnote or endnote to an Act, and no
heading to a section of an Act, shall be taken to be part of the Act." In any event, in construing the section it is generally better to avoid expressions that lack precision and may carry pejorative overtones. Section 45D should be construed according to its terms and having regard to the context in Pt IV in which it appears. Section 4(1), the definition section, defines "acquire" and "supply" by including particular conduct in each case. But, relevantly, the definitions add nothing to the meanings that would ordinarily be attributed to those expressions.

6. One might well conclude that a refusal by the appellants (or one or more of them) to supply pasteurised milk to the respondent would lead in turn to the hindering or prevention of the supply of milk to the respondent's customers. But if such a refusal of itself is conduct within s.45D(1)(b), it must follow that the prohibitions in s.45D(1) include conduct which hinders or prevents the supply of goods by a "fourth person" to a "third person" though the very detailed provisions of s.45D(1) make no reference to such a situation.

7. A contract, arrangement or understanding between the appellants that had the purpose of preventing, restricting or limiting the sale of pasteurised milk to the respondent might, if any of the appellants was a corporation, appear to fall within s.45 of the Act, read with the concept of "exclusionary provision" appearing in s.4D. Nevertheless, no claim based on s.45 could have succeeded because, due to the system in New South Wales which regulates the retail sale of milk in zones, the appellants were not in competition with each other. Now the fact that conduct falls within one section of the Act does not mean that it may not fall within another section. The Act contemplates that the same conduct may infringe more than one provision of Pt IV, because s.76(3) prevents more than one pecuniary penalty attaching to conduct constituting a contravention of two or more provisions of Pt IV. It is true that some provisions are expressly excluded from applying where more specific provisions operate. For example, s.45(5)(a) and (b) excludes s.45 from applying to covenants to which s.45B applies. But s.45 makes no attempt to exclude from its operation conduct proscribed by s.45D(1). And s.45D is expressly stated not to affect the operation of any other provision in Pt IV: see s.45D(7). However, all this means no more than that it is no answer to a claim under s.45D(1) to show that the conduct complained of falls within s.45. The question still remains - did the appellants act in contravention of s.45D(1)(b)? This is not merely a case of attaching labels to conduct which is in breach of the Act. The notice of appeal is expressed in terms only of s.45D(1)(b) and the appeal was fought in terms only of that paragraph. No question arose as to the liability of the appellants under some other provision. Nor could it, in the absence of findings of fact relevant to such a liability. We are back to the point made at the outset of these reasons - if the conduct of the appellants did not fall within s.45D(1)(b), the appeal must succeed.

8. The view taken by Sheppard and Wilcox JJ. in the Federal Court was that "the denial of supply to the (respondent) constituted a primary boycott. But that denial had the consequence of supply in turn being denied to the (respondent's) customers. Either they went without New South Wales milk or they were forced to obtain supplies of it elsewhere."

9. Spender J., in dissent, disagreed that
"one can permissibly apply s.45D ... so that a primary
boycott of a corporation by its suppliers is a secondary boycott by those suppliers of the customers of the corporation.

A direct interference with supply to a corporation almost inevitably affects the capacity of a corporation to supply its product to its customers. In my opinion, such a direct interference with supply to a corporation is not an interference with the supply by a corporation to its customers."

With the caveat that a contradistinction posed in terms of primary and secondary boycotts may tend to obscure questions of construction, I agree with Spender J.'s approach, though relevantly it is not supply by a corporation to its customers but acquisition by the customers from the corporation with which we are concerned.

10. Although the order of the Federal Court is expressed by reference to "pasteurised milk", there is some question as to the identity of the goods, the acquisition of which is said to be hindered. As Spender J. points out, the non-supply of New South Wales pasteurised milk "does not hinder or prevent the acquisition of Victorian pasteurised milk by (the respondent's) customers, although the conduct is engaged in to persuade (the respondent) not to acquire Victorian pasteurised milk". The non-supply of New South Wales pasteurised milk will affect the respondent's capacity to supply that milk to its customers. It cannot affect the respondent's capacity to supply its customers with pasteurised milk from Victoria or anywhere else. But the matter can be disposed of without focusing unduly on the precise identity of the milk; the appeals to the Federal Court and to this Court were argued by reference to "pasteurised milk".

11. Burchett J., at first instance, said:
" To treat the actions of the milk vendors as conduct
that hindered or prevented the acquisition of milk by customers of (the respondent's) stores is to look beyond the direct effect of those actions upon supply to the stores, and to take account of an indirect or ultimate effect upon the availability of milk to the customers of the stores." It is true that the Act, from time to time, uses the expressions "direct or indirect" or "directly or indirectly": see s.47(2), (3), (6), (7), (8), (9) and (13); s.50(1) and (1A). But the distinction between direct and indirect effects is not particularly helpful since s.45D(1) uses neither expression; nor is the presence of "directly or indirectly" in other contexts something from which any useful inference may be drawn in regard to s.45D(1).

12. Later Burchett J. added:
"... s.45D(1) deals separately with supply of goods ... to a
'fourth person' and acquisition of goods ... from a 'fourth person'. It would be inconsistent with the structure and evident intent of the provision to treat an interference with supply to the (respondent), not under that part of the provision which deals with supply to it, but as an indirect interference with acquisition from it." Again, subject to a caveat as to the use of the term "indirect", what his Honour said is, in my view, the inevitable consequence of the proper construction of s.45D(1)(b) within the framework of that sub-section. To construe the paragraph in the way for which the respondent contends is to eliminate the distinction expressed so clearly in the sub-section between conduct which hinders or prevents supply to a "fourth person" and conduct which hinders or prevents acquisition from a "fourth person". Because the distinction is expressed so clearly, it does not advance the respondent's case to argue for a literal construction of the provision. Conduct which hinders or prevents the supply of goods to a "fourth person" is not necessarily conduct which hinders or prevents the acquisition of goods from that "fourth person". No doubt, some conduct may satisfy both descriptions but the conduct of which the respondent complains does not. It is true that, by reason of the appellants' conduct in not supplying their milk to the respondent, there was no New South Wales milk which the respondent's customers could acquire from it. But that is not conduct which, in terms of s.45D(1), hindered or prevented the acquisition of pasteurised milk from the respondent; something more is required to maintain the distinction which s.45D(1) draws so clearly. It may be tempting to contrast s.45(2) and s.45D(1) by reference to the terminology "primary" and "secondary" boycotts. But these are in truth labels and may mislead. Nevertheless, it is apparent that the two provisions are generally concerned with different conduct and that each has a different place in the scheme of Pt IV of the Act. The conclusion reached by the majority in the Full Court would tend to render s.45(2) otiose because of the need to find persons who are competitive with each other before that sub-section may operate.

13. It is enough, for present purposes at any rate, to focus on the distinction maintained within s.45D(1), a distinction which has the consequence that, if conduct of the appellants hinders or prevents the supply of goods to a "fourth person", that is not enough to enable the respondent to succeed in a claim under s.45D(1)(b). For it to succeed under that paragraph, there must be conduct which, when examined, can be seen to impede the purchase of pasteurised milk from the "fourth person", the respondent, by a "third person", its customers. That is not the case.

14. It follows that the appeal should be allowed.

Orders

Appeal allowed with costs.

Set aside the orders of the Full Court of the Federal Court of Australia allowing the appeal from the orders of Burchett J. made 22 February 1989 and in lieu thereof order that the appeal to the Full Court be dismissed with costs.