Grace Bros Pty Ltd v Magistrates of the Local Courts of NSW

[1988] FCA 661

JUDGMENT No. ........ ........ 661, ........ ..._". 8s

CATCHWORDS

CONSTITUTIONAL LAW (Cth) - Inconsistency between Commonwealth 'law and law of State - Trade Practices - representat~on that

foreign-made goods were Australian-made - Summons served on

applicant under S. 32 (11 of the Consumer Protectlon Act 1969

(NSW) - application for orders in the nature of prohibltion and

certiorari against respondents - whether ss. 32, 33A 338, 56

of inconsistent with sub-ss. 53 (eb), the Consumer Protectlon Act 1969 (NSW) were

and 57

/9 ( 1 ) ( a ) and ( g ) and ss.

85 and 163 of the Trade Practices Act 1974 (Cth) within the

meaning of S. 109 of the Constitution	- meaning of "concurrent"
in S.	75 (1) of the Trade Practices Act.

TRADE PRACTICES - Jurisdiction of the Federal Court of

Australia - meaning of "matter arising under thls Act" in S.	163A of the Trade Practices Act 1974 - whether those against
whom the relief d escribed in sub-s. 163A ( 1 ) (b) nay be
directed includes persons holding offices created by State law.
CROSS VESTING LEGISLATION - Legislation does not invest Federal
Court with totality of federal jurisdiction Invested in State
courts by S. 39 of-the Judiciary Act 1903 - whether competent
for State law to invest jurisdiction in the High Court, Federal Court or any other federal court.
Interpretation Act 1897 (NSW) Acts Interpretation Act 1901 Justices Act (1902) (NSW) Judiciary Act 1903 Crimes Act 1914 Consumer Protection Act 1969 (NSW) Trade Practices Act 1974 Federal Court of Australla Act 1976
Fair Trading Act 1987 ( NSW)
Interpretation Act 1987 (NSW)
Jurisdiction of Courts (Cross-Vesting) Act 1987
Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)

L .

HOO elFv Hooper (1955) 91	CLR 529
&mm-Jones v	Vitzdamm-Jones (1981) 148 CLR 383

Re Tooth & CO Ltd (1978) 31 FLR 314

Crouch v Commissioner for Railways (Queensland)	(1985) 159 CLR
7
& L

(1971) 124 CLR 367

CO Ltd v Philip Morris Ltd (1980) 1 4 5 CLR 457

L.N.C. Industrres Ltd v B.M.W. (Australla) Ltd (1983) 151 CLR

Ltd

7

And

ces of the County of Berks. (1883) 9 App Cas

Breavin ton v Godleman (1988) 62 ALJR 447

+ Cap ta T.V. and Appliances Pty Ltd v Falconer (1971) 125 CLR

Attorney-General of the Commonwealth of Australia	v The Queen
1957) 95 CLR	529
In the Hatter of Tink (Supreme Court	of Queensland, Ryan J, 17
October 1988	, unrep.)

The Commonwealth v The State of Queensland (1975) 134 CLR 298

Philip Morris	Inc. v Adam P. Brown Male Fashlons Pty Ltd	(1981)
1 4 8 CLR 457

Smith v Smith (1986) 161 CLR	217
Friendshiprporation Pty Ltd v Adamad Pty Ltd	(1984) 6 FCR

51

v North Broken Hill Holdings Ltd (1986) 9

Orison Pty Ltd v Strateglc Minerals Corporation NL (1987) 77

ALR 141

Lowe v The Minister for Immigration, Local Government & Ethnic

m i r s (Federal Court	of Australia, Wilcox	J, 14 October 1988,
unreD. )

N E t c b ~	(Austt;) PtydLtd v Dataplex Pty Ltd [l9881 ATPR 40-883
Acceptance Corporation, Australia (1977) 137 CLR 545 T e Queen v T e Cre it Tribunal (SA); Ex parte General Motors	Tobacco Institute of Australia Ltd v Australian Federation of
Consumer Organisations Inc. (Full Court of the Federal Court, 21 October 1988. unreD.1 The Queen v Duncan; E;( parte Australlan Iron & Steel Pty Ltd

0 8 CLR 535

Miller v Miller (1978) 141 CLR 269

T h e i o n Steamship Co. of New Zealand Ltd v The Commonwealth

1925) 36 CLR 130

R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338

Ex parte Gallagher (1982) 152 CLR 211

(Operations) Pty Ltd v Wardley

42 CLR

R v H a 1 (NO. 2 ) [l9021 St R Qd 5 3

- 1

- Ltd v - King ( V l g h Court

of Australia, 26 October 1988, unreo.)

Flaherty v Girgis (1987) 162 CLR 5 7 2

Darwin Bakery Pty Ltd v Sull (1981) 51 FLR 90

Adams v Eta Foods Ltd ( 1 d ) 78 ALR 611

GRACE BROS. PTY LIMITED V

MAGISTRATES OF THE LOCAL COURTS OF NEW SOUTH WALES & ANOR

G1119 of 1988

CORAM :  GUMMOW J

PLACE: SYDNEY

DATE :  8 NOVEMBER 1988

IN THE FEDERAL COURT OF AUSTRALIA	)
NEW SOUTH WALES DISTRICT REGISTRY	NO. G1119 Of 1988
GENERAL DIVISION	)

BETWEEN:  GRACE BROS. PTY LIMITED

Applicant

AND :  MAGISTRATES OF THE LOCAL
COURTS OF NEW SOUTH WALES

First Respondent

WARREN FRANCIS SAWYER

Second Respondent

CORAM: GUMMOW	J .
PLACE:	SYDNEY
DATE :	8 NOVEMBER 1988

MINUTE OF ORDER

THE COURT ORDERS AS FOLLOWS:

That the application be dismissed with costs.

- Note: Settlement and entry of orders is dealt with by Order

36 of the Federal Court Rules.

IN THE FEDERAL COURT	OF AUSTRALIA	)
NEW SOUTH WALES DISTRICT REGISTRY	)	No. G1119 of 1988

DIVISION GENERAL )

BETWEEN:  GRACE BROS. PTY LIMITED

Applicant

AND :  MAGISTRATES OF THE LOCAL
COURTS OF NEW SOUTH WALES

First Respondent

WARREN FRANCIS SAWYER

Second Respondent

CORAM:  GUMMOW J

PLACE:	SYDNEY
DATE :	8 NOVEMBER 1988

REASONS FOR JUDGMENT

The Facts

The applicant is a company incorporated in New South

Wales and carries on business by the operation of retail

department stores. Plainly,	it is a "corporation" within the
definition in sub-s.	4 ( 1 ) of the Trade Practices Act 1974
("the Trade Practices Act").

On 18 March 1987, the applicant caused to appear in an

issue of the "North Shore	Times", a newspaper which circulates
in	the northern suburbs of Sydney, an advertisement headed

"Baby wonderland". The advertisement was published to promote

the .sale of various goods at the appllcant's store at

Chatswood, one of those northern suburbs. The words

"Australian made 'Dixie' stroller by Steelcraft!" introduced

one of the items promoted by the advertlsement.

There has been no prosecution under S. 79 of the Trade

Practices Act. However, on 29 February 1988, there was served on the applicant a Summons headed:

DIVISIONS 1 AND 2 "JUSTICES ACT, 1902", CONSUMER PROTECTION Act NO. 28 Of 1969, section 32 (1)

and S. 758 of the Justices Act, 1902.

and returnable before the Local Court, 302 Castlereagh Street,

Sydney.

The second respondent was stated in the Summons to

"a public officer Department of Consumer Affairs" and to have
been the informant that, on 18 March 1987, at Chatswood:

be

GRACE BROS. PTY LTD (herelnafter called the

Defendant) a duly incorporated company

having its registered office at 185-223

George Street, West Broadway, DID CAUSE TO

BE PUBLISHED a statement which was intended

€ 0 promote the supply of goods, to wit a

STEELCRAFT P430 DIXIE STROLLER, to his [sic]

knowledge, false in a material p a r t l c u E .

FURTHER PARTICULARS: Statement Of page 3 3 Of

the NORTH SHORE TINES in the edition of
Wednesday, 18th March, 1987 was as follows:
"Australian made 'Dixie' Stroller by

Steelcraft", when in fact the said stroller

was made in Taiwan.

The Stammons has not been heard before a maglstrate of the Local

Court of New South Wales, further steps there awaltlng the outcome of these proceedings.

In the present proceedings ln this Court, the

applicant seeks orders in the nature of prohlbltron and

certiorari against the respondents. The applicant relies upon

sub--8.	163A (1) of the Trade Practices Act. This provides as
follows:

163A (1) Subject to this section, a person may

institute a proceeding in the Court

seeking, in relation to a matter

arising under this Act, the making of -

(a) a declaration in relation to the

operation or effect any of

provision of this Act other than
Division 2, 2A or 3 of Part V or
in relation to the validity of any
act or thing done, proposed to be
done or purporting to have been

done under this Act; or

(b) an order by way of, or in the

nature of, prohibition, certiorari

or mandamus,

or both such a declaration and such an
order, and the Court has jurisdiction

to hear and determine the proceeding.

The ground for this relief advanced in the Application is that

at the date of the offence against S. 32 of the Consumer

Protection Act 1969 (NSW) ("the State Act"), the State Act was inconsistent with the Trade Practices Act, within the meaning of 8 . 109 of the Constitution, so that the State Act was, to

the -tent	of the inconsistency, invalid.
On the return of the Application before the Court 12 August 1988, the Court gave directions for the issue and	on
service of notices as required by	S. 788 of the Judiciary Act

1903 ("the Judiciary Act"). When the Appllcation came on for final hearing on 24 October 1988, evidence was tendered that

the necessary notices had been given and that none of the

addressees of the notices wished to intervene in the proceedings or to apply for removal of the cause to the High Court.

On the final hearing of the Application, Sir Maurice

Byers QC, M r A. Robertson and M C Golding appeared for the

applicant. It became apparent that, despite the expansive

assertion in the Application, the applicant's claim was in

truth, and as one would have expected, more modest. The

applicant drew attention principally to sub-ss. 53 (eb), 79 (1)

(a) and (g), and	ss. 85 and 163	of the Trade Practlces Act, and
to ss.	32, 33A, 338, 56 and	57 of the State Act.

The applicant submitted that there was an

inconsistency in the constitutional sense between the

provisions of the State Act,	as it was sought to apply them to
the applicant, and the provisions	of the Trade Practices Act.

There was, the applicant contended a controversy between the

parties and the applicant relied upon the provisions of the

TradePractices Act as an essential step in demonstratlng that

the relevant provisions of the State Act had no appllcatlon to

it, contrary to the assertion in the Summons issued on the

information of the second respondent. Accordrngly, the

applicant submitted there was a matter arising under the

Trade Practices Act, within the meaning of sub-s. 163A (1) thereof, that in relation to that matter the applrcant sought relief as specified in the Application and that this Court

accordingly had jurisdiction to hear and determine the

proceedings.

I should add that the State Act was wholly repealed by

S . 90 of the Fair Trading Act 1987 (NSW) ("the Fair Trading

Act'). The Fair Trading Act came into force on 1 September

1987, that is to say after the publication	of the advertisement
in question, on 18 March 1987. However,	it was accepted by

counsel at the hearing before me that, if the State Act had

been valid on 18 March 1987, the applicant's liability in

respect of contravention of S. 32 of the State Act was

preserved. This preservation was achieved inrtially by the

operation of S. 8 of the Interpretation Act 1897 (NSW). On the

repeal of that Act by the Interpretation Act 1987 (NSW), which

also came into force on 1 September 1987, this preservative

effect was continued by S. 30 of the current legislation.

The result is that notwithstanding the activity of the

New South Wales Parliament since 18 March 1987, and the repeal

of theJegislation referred to, the applicant remalns placed I n

the jeopardy indicated by the Summons in questlon and there 1s

a live controversy between the applicant and the second

respondent as to the alleged invalidlty of the State Act by

reason of inconsistency with the provislons of the Trade

Practices Act to which I have referred.

The first respondent, the Magistrates of the Local

Courts of New South Wales, appeared and submitted to any order

the Court might make. For the second respondent, the

Solicitor-General for the State of New South Wales appeared,

with Mr Basten of counsel. The learned Solicitor-General

submitted first that the Court lacked jurisdiction under sub-s.

163A (1) of the Trade Practices Act and secondly that, in any

event, the applicant should fail because there was no

inconsistency between the relevant provisions	of the State Act
and the Trade Practices Act.
Jurisdiction

Section 163A confers jurisdiction "in relation to a

matter arising under this Act", but does not require the

existence of a "matter" separate and distinct from the

proceeding in which the Court grants or refuses relief of the character specified in the section. Section 163A deals at once with what have been described as substantive and adjective

elements by providing, in the one form of words, for the rlght

and the remedy:  Hooper v Hooper (1955) 91 CLR 529 at 535-536;

l.

Vitzdam-Jones	v Vitzdamm-Jones	( 1 9 8 1 ) 1 4 8	CLR 3 8 3 at	4 1 1 ,	4 2 5 ,
4 2 9 ;	Re Tooth &	C O Ltd	( 1 9 7 8 )	3 1	FLR 314 at 3 2 0 .

The expression in S. 1 6 3 A "in relation to a matter

arising under the Act" follows and imports the meaning of the

phrase "matter ... Arising under any laws made by the

Parliament" in sub-6. 76 ( i i ) of the Constitution: Re Tooth h

CO Ltd (1978) 31 FLR 314 at 330. The word "matter" focuses

attention upon the substance of the dispute and thus has	a wide
connotation: Crouch	v Commissioner for Railways (Queensland)
(1985) 159 CLR 22 at	37. A matter will arise under a federal

law where that law	is relied upon for an assertion that	a party
to a	controversy is	immune from the liability or obligation

alleged against him:	Felton v Mulligan ( 1 9 7 1 )	1 2 4	CLR 3 6 7 at
408; Moorgate Tobacco CO Ltd	v Philip Morris Ltd	( 1 9 8 0 ) 1 4 5	CLR

457 at 476;	L.N.C.	Industries Ltd v B.M.W. (Australia) Ltd
(1983) 151 CLR 575 at	5 8 1 .	In such circumstances, the "matter"

embraces	the	controversy	between	the	parties,	the	entire
proceeding,	excepting	only	claims	that	are	distinct	and

unrelated: Moorgate Tobacco CO Ltd	v Philip Morris Ltd	( s u p r a )
at 481-482.

In the present case, the immunity from the State law

which the applicant asserts is the product not simply of the federal law in question but of the operation of S. 1 0 9 of the Constitution. The matter thus also may answer the descrlptlon

"arising under this Constitution or nvolving its

intergratation" within the meaning	of sub-s. 76 ( i ) of the
Constitution: Ex parte McLean (1930)	43 CLR 472; Belton v
General Motors-Holden's Ltd	(1984) 58 ALJR 352. Nevertheless,

the jurisdiction of this Court, attracted under S. 163A by the existence of a matter arising under a federal law, IS not lost or diminished and extends to the whole of the controversy in

the sense indicated above, including the constitutional

question: Re Tooth 6 CO Ltd (No. 2 ) (1978) 34 FLR 112 at 119,

130, 139-140.

There remains the question of the relief sought

against the respondents under S. 163A. The learned Solicitor-

General did not contend that it would be beyond the legislative

competence of the Parliament to legislate so as to render the

respondents (particularly the first respondent) amenable to

orders of the nature described in	S.	163A. But he submitted
that on its proper interpretation,	S.	163A did not have that
effect.

The learned Solicitor-General referred to Bradken

Consolidated Ltd v The Broken Hill Proprietary Co. Ltd (1979)

145 CLR 107. The	case concerned proceedings against, inter
-	alia, The Commissioner for Railways for the State of Queensland
for an injunction under S. 80 of the Trade Practices Act
restraining him from giving effect o certain alleged
contracts, arrangements and understandings contrary to S. 45 of that Act. It was held that these provisions did not apply to
the Cammissioner because he was an lnstrumentallty or agent of
the Crown in right of the State of Queensland and these provisions did not by express words or necessary lmpllcatlon bind the Crown in right of the States.
But the first inquiry must be to ascertain what would be involved in holding the Crown to be "bound" and by what it would be "bound". The present case presents rather different
issues to those in the Bradken Consolidated Case. It 1s not a
question of whether the Crown in right of a State is subjected
to the obligations imposed by Parts IV or V of the Trade
Practices Act and to the liabilities to others which arise from contravention of those provisions. The question 1s whether the State law under which proceedings have been instituted against the applicant is invalid to the extent of inconsistency with
provisions of the federal law and, if this be so, what relief
is available to the applicant. If the State law were invalid
in this sense, the reason why the first respondent would be acting without jurisdiction would lie in the inter-action of
the Trade Practices Act and S. 109 of the Constltution, not
simply in any question of State law. The first respondent
would be bound by S. 109 of its own force: The Universlty of
Wollongonq v Hetwally (1984) 158 CLR 4 4 1 at 478-479.

Given that there otherwise is a matter in respect of

which this Court has jurisdiction under S. 1 6 3 A of the Trade

Practices Act, does the section provide for remedial powers

to e n u r e compliance with federal	law and the Constitution? In
answering that questlon, one bears particularly	in mlnd that S.

109 of individuals the Constitution serves a function of protectlng

from the injustice of subjection to the

requirements of valid and inconsistent laws of Commonwealth and

State Parliaments on the same subject (The	University	of
Wollongonq v Metwally (*)	at 477). Where	a matter arlses

under the Trade Practices Act and involves givlng effect to	S.
109, S.	163A is to be read as facilitating that result.
In my view, in such a case, and as a matter of

necessary implication, those against whom the relief described

in sub-s. 163A (1) (b) may be directed, includes persons

holding offices created by State law, such as the respondent.

(Similar reasoning, with respect to the constructron of the

generally expressed provisions of ss. 23 and 31 of the Federal

Court of Australia Act 1976 ("the Federal Court Act")	is
apparent in Victoria v The Australian Building Construction
Employeesf And Builders Labourers' Federation (1982) 152 CLR	5

at 61, 79-80, 93-94, 105, 138-139). It is unnecessary to

decide whether on its proper construction S. 163A authorises

the making in any other circumstances of orders against State

officers,	of	or	in the nature of prohibition, certiorari or
mandamus.

second information the Summons issued. Proceedings for an offence respondent was the person upon whose

The

against S. 32 of the State Act shall be commenced by

information and may be taken only	by a person with the written
authority of the responsible Minister. Section	56 of the State

Act so provides and in this way modifles the otherwise general

operation of S. 52 of the Justices Act (1902) (NSW). Where an

information has been laid by a "publlc officer" wlthln the

meaning of S. 158 of the latter statute, the Court may proceed

in the absence of the defendant.

The above reasoning as to the posltlon of the first

respondent applies equally, if not - a fortiori, to the position

of the second respondent as the addressee of an order of the

nature specified in sub-8.	163A (1) (b) of the Trade Practices
Act.	I should add that, the remedies being discretionary, it
may in	a particular case be appropriate and sufficient to grant

relief against the informant rather than those before whom the

prosecution is to be conducted.

Finally, I have Coomber v The Justices of the County not overlooked what was sald in

of Berks. (1883) 9 App Cas

61 at Guards, among others, as one of the "great departments" of the 1 3 . In that case, Lord Watson described the Horse

British State. His Lordship then said that whilst he

occupiers of buildings used as courts of assize or as county police stations were perhaps not strlctly servants of the

Crown, they were to be considered conslmrll casu. The

result was that buildings did not attract taxation under a

I

I

12.

Certain statute. This case was relied on by the learned

Solicitor-General as of assistance in construlng S. 163n of the

Trade Practices Act, in conjunction with the Bradken

Consolidated Case.

I do not find the case of assistance, given the

absence of a federal	system	in	Britain,	the	lack	of
constitutional	restraints	upon	legislative	power,	and	the

absence of the doctrine of judicial review	of validity of
legislation:	see the discussion by Deane J in Breavington v

Godleman (1988) 62 ALJR 447 at 472-474. (It may also be noted

that in colonial New South Wales, at the time when Lord Watson
spoke in Britain, the position of officers of government,
public servants and departments of state by no means followed

the British position, the prerogative there having given way to

legislation here; see Professor Finn's work, "Law and

Government in Colonial Australia", pp 57-67).

The conclusions I have reached make it unnecessary to

decide the applicability to these proceedings of the

cross-vesting legislation, Jurisdiction of Courts (Cross-

vesting) Act 1987, Jurisdiction of Courts (Cross-vesting) Act	1987 (NSW), but there was, in address, some discussion of the
subject. Plainly, a question of the operation of S. 109 of the Constitution upon the State Act involves the exercise of federal jurisdiction. "Federal" postulates that which follows
from the division f authority between the Commonwealth and the
States; the Territories stand apart because within them the
Commonwealth is the sole and sovereign authority: Capital T.V.
and Appliances Pty. Ltd. v Falconer (1971) 125 CLR 591 at 599,
610. Laws Constitution may vest jurisdiction in the High Court and other made by the Parliament under S. 122 of the
federal courts, but whilst this jurisdiction is invested by the
Parliament, it is not federal jurisdiction: Attorney-General
of the Commonwealth of Australia v The Queen (1957) 95 CLR 529
at 545; Falconer's Case ( W ) at 600, 601-602, 609, 612,
614-615, 620, 627-628. Nothing said in these authorities
suggests that jurisdiction of whatever description may be
vested in a federal court otherwlse than by a law of the
Parliament in exercise of its constitutional powers; c In the
Matter of Tink (Supreme Court of Queensland, Ryan J, 17 October
1988, unrep.) which appears to have proceeded on some other
reading of the authorities.

The Solicitor-General accepted that on Its face the

cross-vcsting legislation did not vest in this Court the

totality of the federal jurisdiction which is speclfled, in

relation to the High Court, by ss. 75 and 76 of the

Constitution, and which is invested in State courts (subject to

S. 38 of the Judiciary Act) by S. 39 of the Judiciary Act.

This Court does not have any express grant of lurisdictlon i

matters arising under the Constitution or involvlng its

interpretation, as does the High Court pursuant to	sub-s. 76
(i) of the Constitution and	sub-s. 30 (a) of the Judiciary Act.

Constitutional - questions may ar1se and be determlned in thls

Court, but this is because its ]urlsdlction has otherwlse been

engaged in respect	of a matter, one element of whlch 1s the
constitutional question (as the present case illustrates),	or
because the constitutional question provides an associated
matter within the meaning of S.	32 of the Federal Court Act.

Because the matter presently before the Court has the indubitable federal character	I have indicated,	no question
arose as to the competency	of	a State legislature, with the

consent of the Commonwealth Parliament (but without a reference

by the State of power under sub-s. 51 (xxxvii) of the

Constitution), to vest jurisdiction in the Hlgh Court, this

Court or any other federal court; nor did a question arise of

the competency of the Commonwealth Parliament o vest

jurisdiction in a federal court otherwise than with respect to

"matters" described in ss. 75, 76 and 77 of the Constitution,

or by law made under S. 122 of the Constitution (see Report of

the Australian Judicial System Advisory Committee of the

Constitutional Commission 1987, S3.30, 53.113; Flnal Report

of the Constitutional Commission, Vol. 1, S6.29-6.38;

Falconer's Case (supra); The Commonwealth v The State of

Queensland (1975) 134 CLR 298 at 313, 325; Philip Morrls Inc.

v Adam P. Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at

478. 495, 516, 521, 353-535, 547-5401. Nor	did any question
arise as to whether, in	a given case, the accrued jurisdiction
of this Court to entertain matters arising under	a particular
federal law includes claims to relief with respect to	a right

created by State statute which also provides for enforcement of

that right in a State court: Smith v Smith (1986) 161 CLR 217

at 237-238, 240-241, 250-251; Friendship Corporation Pty Ltd	v
Adamad Pty Ltd (1984)	6 FCR 351 at 354; Industrial Equity Ltd
v North Broken Hill Holdings Ltd (1986)	9 FCR 385 at 386;

Orison Pty Ltd v Strategic Minerals Corporation NL (1987) 77

ALR 141;

cf Government & Ethnic Affairs (Federal Court of Australia, Wilcox
J, 14 October 1988, unrep.) Lowe - - v The Minister for Immlgration, Local

The Statutory Provisions

I should statutory provisions to which reference was made in argument. now set out the text of the principal

I turn first to the provisions of the Trade Practices Act.

Sub-section 53 (eb) provides:

53 A corporation shall not, in trade or

commerce, in connexlon with the supply or

possible supply of goods or services or in

connexion with the promotion by any means	of
the supply or use of goods or services -
. . .

(eb) make a	false or misleading represent- ation concerning the place	of origin of
goods.

The meaning of the term "place of origin" was considered in
Netcomm (AusL) Pty Ltd v Dataplex Pty Ltd [l9881 ATPR 40-883.

- Sub-section 6 ( 2 ) ( h ) of the Trade Practices Act glves

to sub-s. 53 (eb) an applicatlon to a person not belng a

corporation, this being for purposes otherwrse falllng wlthin

the head of federal legislative power, such as the trade and

commerce power: The Queen v The Credit Tribunal (SA); Ex parte

General Motors Acceptance Corporation, Australia (1977) 137 CLR

545 at 559 per Mason J. However, as I have indicated, the only

operation of sub-s. 53 (eb) which is directly involved in the

present case is its primary operation as directed to

corporations,	including	trading	corporations	such	as	the
applicant.

Sub-section 53 (eb) is a statement of imperfect

obligation in the sense that whilst it specifies the party

owing the obligation, it does not indicate to whom the

obligation is owed or what remedies attend contravention of the

norm of conduct it establishes. The identification of the

other integers	of liability will vary with the other provisions
of the Trade Practices Act, to any one or more of which	sub-s.

53 (eb) may be attached in particular proceedings; see Tobacco

Institute of Australia Ltd	v AUStKalian Federation of Consumer
Organisations Inc. (Pull Court of the Federal Court, 21 October

1988, unrep. pp 10-13).

One of those provisions is S. 79. This provides,

inter alia, that a person who contravenes certain provlslons of

Part V of the Trade Practices Act, including	S. 53, is guilty
of an-offence punishable	on convictlon, in the case of a person

being a body corporate, by a fine not exceeding $100,000.

Sub-section 79 (6) provides that a prosecutlon for an offence against sub-section (1) may be commenced within 3 years after the commission of the offence.

Section 85, so far as material, provides as follows:

85 (1) Subject to sub-section ( 2 1 , in a

prosecution under this Part in relation
to a contravention of a provision of
Part V, it is a defence i f the

defendant establishes -

(a) that the contravention in respect

of which the proceeding was

instituted was due to reasonable

mistake;

(b) that the contravention in respect

of which the proceeding was

instituted was due to reasonable
reliance on information supplied

by another person; or

(c)	that -
(i) the contravention in respect of which the proceeding was

instituted	was	due	to	the
act	or	default	of	another

person, to an accident or to

some other cause beyond the

defendant’s control; and

(ii) the defendant took reasonable

precautions and exercised due

diligence av id to the

contravention.

. . .

(2) If a defence provided by sub-section

(1) involves an allegation that a

contravention was due to reliance on

information supplied by another person

or to the act or default of another

person, the defendant is not, without

leave of the Court, entltled to rely on

that defence unless he has, not later
than 7 days before the day on whlch the

hearing of the proceeding commences,

served on the person by whom the

proceeding was instituted a notlce in

writing giving such information that

would identify or assist in he

identification of the other person as

was then in his possession.

Section 163 confers jurisdiction on this Court to hear and

determine prosecutions, and makes it clear that such

prosecutions may be brought only in this Court.

I turn now to the provislons of the State Act.

Sub-section 32 (1) states:

32 ( 1 ) Any person who publishes or causes to
be published any statement which -

(a)	is intended or apparently lntended
to promote the supply or use of

goods or services or the disposal

of interests in land; and

(b) is to his knowledge false or

misleading material any

particular,

is guilty of an offence against thls

Act.

Section 32 is in Part I11 of the State Act. Section 56 of the
State Act, so far as material, provides as follows:

56     (1) Proceedings for an offence against thls Act (Part V excepted) may -

l

19.

( a ) be taken and prosecuted only by a

person acting with the authority

in writing of the Minister; and

(b) be disposed of summarily before -

(i)    a Local Court constituted by a Magistrate slttlng alone;

(ii) an industrial magistrate; or

( i i i ) the Supreme Court in its

summary jurisdiction.

If proceedings for an offence against

this Act (Part	V excepted) are taken in
a	Local Court or before an industrial

magistrate, the court or magistrate

shall not,	on convicting any person for
the offence, impose	a penalty exceeding

$2,000, notwithstanding that the

maximum penalty which could, apart from
this subsection, be imposed under this

Act exceeds that amount.

If proceedings for an offence against

this Act (Part V excepted) are taken in

the Supreme Court in its ummary

jurisdiction, the Supreme Court may

impose a penalty not exceeding the

maximum penalty prescribed by this Act

in respect of the offence.

Proceedings for an offence agalnst this

Act (Part V excepted) shall be

commenced by information but may not be

commenced after the expiration of 12

months after the time when the offence

is alleged to have been commltted.

The limitation period	of 12 months may be compared with that of
3 years in sub-s.	79 (6) of the Trade Practices Act.

Section 57 of the State Act deals with penalty. It

provides:

!

20.

- 57 (1) A person who 1s guilty of an offence against this Act for which no penalty

is otherwise provided IS liable to a

penalty not exceeding $10,000.

( 2 )	Where a person convlcted of an offence against this Act is a body corporate, every person who at the time of the
commission of the offence was a
director or officer of the body
corporate shall be deemed to have
committed the like offence and be
liable to the pecuniary penalty or
imprisonment provided by this Act for
that offence, unless he proves that the
offence was committed without his
knowledge or that he used all due
diligence to prevent the commission of the offence.

Sub-section 32 (3) is in the following terms:

32     (3) In any proceedings under this section

against any person for publishing any

such statement or causing It to be

published, if it is proved that the

statement was false or misleading in

any material particular, the person who published the statement or caused it to be published shall be deemed to have

published it or to have caused it to be published with knowledge of its falsity or misleading character, as the case
may be, unless he proves that having

taken all reasonable precautions

against committing an offence under
this section he had reasonable grounds
to believe and did believe that the

statement was true and had no reason to

suspect that the statement was false or

misleading.

Sub-section 33A (2) and S. 338 contain provisions

which present some similarity to those of ss. 82, 83 and 87 of

the Trade Practices Act. The provisions in the State Act are

as follows:

- 33A (2) Where a person is found guilty of an

offence under section 32 and the court

which made the finding also finds that

a party to the proceedings for the

offence has sustained loss or damage

which is attributable, or partly

attributable, to the reliance by that
other person on the statement to which

the offence relates, that court may, in

addition to any penalty imposed in

respect of the offence, make an order directing the person found guilty of

the offence, within	a period specified
in the order -
(a) to	refund any money paid, or to

return any property transferred,

to him by that party to the

proceedings; or

(b)	to pay to that other person money equivalent in amount to the loss
or damage that that party has

sustained.

33B (1) The obligation imposed by section 32

(1) or	( 2 ) on any person not to publish
or cause to be published	a statement in

contravention of either of those

subsections is a duty which is owed by

him to every other person, and breach

of that duty is actionable (subject to

the defences and other incidents

applying to actions for breach of

statutory duty) at the suit of any

person who has sustained loss or damage

in consequence of that breach, whether

or not he is a person who purchased or

used any goods or services, or acqulred

any interests in land, in reliance upon

the statement.

(2) Where, in any proceedings brought

against a person for an offence under

section 32 (1) or (21, a finding of

fact is made by the court in which

are brought, a

those	proceedings
document under the	seal of that court
from which the finding	of fact appears

admissible is evid nce in in

proceedings brought under subsection
(1) against that person and is prima

- facie evidence of that fact

I should add a reference to S. 44 of the F a l r Trading

Act because in submissions attention was directed to it, ln contrast to the provisions of the previous legislation, as

presenting a 'mirror image" of S. 53 of the Trade Practices

Act. Section 44 ( i ) provides:

44    A person shall not, in trade or commerce, in

connection with the supply or possible

supply of goods or services or In connection

with the promotion by any means of the

supply or use of goods or services -

. . .

(i) make a false or misleading represent-

ation concerning the place	of origin of
goods.

Further, S. 62 of the Fair Trading Act provides that a person

who contravener a provision such as S. 44, is guilty of an

offence and is liable, in the case of a body corporate, to a

penalty not exceeding $100,000; sub-s. 62 ( 3 ) states:

62 ( 3 ) If an act offence against this Act and an offence

or omission is both an

under a law of the Commonwealth or	a
law in force elsewhere in Australia,	a

person convicted of an offence under

that law is not liable to be convicted

of the offence against this Act.

The terms of this provision are evocative of	sub-s. 75 (2) of
the Trade Practices Act. Section	75 is of central importance

to the argument concerning lnconsistency.

Inconsistency

Section 75 is included in Part V of the Trade

Practices Act. It provides:

Except as provided by sub-section ( 2 ) ,

this Part is not intended to exclude or
limit the concurrent operation of any

law of a State or Territory.

where an act or omlsslon of	a person is
both an offence against section	l9 and
an offence under the law of	a State or

Territory and that person is convicted of either of those offences, he is not liable to be convicted of the other of

those offences.

Except as expressly provided by this

Part, nothing in this Part shall be

taken to limit, restrict or otherwise

affect any right or remedy a person

would have had if this Part had not

been enacted.

Section 79 and the other provisions dealing with

offences are contained in Part VI. Sub-section	53	(eb) 1s
contained in Part	V, the same Part as	S. 1 5 , so that sub-s. 53

(cb) is picked up by the words "this Part is not intended	..."
in sub-s. 75 (1).

Section 75 of the Trade Practices Act is concerned not only with the inter-relation between the federal Act and State laws, but also with the interrelation between the federal

Act and the laws of a Territory. The present proceedings are

concerned only with the first aspect and wlth lnconsistency between federal and State laws. Accordlngly, ~n what follows,

I deal only with this operation of S. 75.

The Commonwealth Parliament has indicated in S. 75 an

intention not to interfere with the concurrent operatlon of

federal and State laws, except as provided by	sub-s.	( 2 ) .
That is the force of the statement in	sub-s.	75 ( 1 ) that Part V

is not intended to exclude or limit the concurrent operation of

any law of a State, except as provided in sub-s. 7 5 (2).

Sub-section 75 ( 3 ) confirms this interpretation by

indicating an intention not to limit, restrict or otherwise

affect any right or remedy which an applicant might have, inter

-	alia, under State law in respect of conduct proscribed under
Part V. Thus it is, for example, that claims in tort
frequently are brought in the accrued jurisdlction of this
Court as elements in matters arising from contravention of Division 1 of Part V.

Plainly, the use in sub-s. 75 ( 1 ) of the term

"concurrent" to describe the operation of State and federal
-	laws, reflects the division of federal legislative powers
between those exclusive of (eg ss. 52 and 90 of the Constitution) and those concurrent with, the legislative powers
of the States. The question is what is meant by "concurrent
operation" in sub-s. 75 (l), for it is this which the
Parliament intends not to limit or exclude.

When used to describe the operation of federal and

State laws, the adjective "concurrent" may, in accordance with

Australian constitutional doctrine, have various meanings.
First, it may identify laws which operate each in aid of the

other, and neither independently of the other; an example is

the legislation considered in The Queen	v Duncan; Ex parte
Australian Iron h Steel Pty Ltd (1983) 158 CLR 535. Here,	S.

109 of the Constitution has no role to play. Secondly,

"concurrent" may describe laws which, in a geometrical

metaphor, meet at the same point; there may then be what
Barwick CJ called a textual collision (Miller v Miller (1978)

141 CLR 269 at 275) because to obey one law is to disobey the

other. The present is not such a case. This direct hostility,

to adapt the phrase of Higgins J in The Union Steamship Co. of

New Zealand Ltd v The Commonwealth (1925) 36 CLR 130 at 158,

puts the citizen in an intolerable situation if the concurrent

operation of both laws	is to be preserved. That hostility
presents the paradigm case for the application of	S. 109 of the
Constitution so as to deny validity to the State law to the
extent of the	inconsistency, thus putting a stop to the

concurrent operation of State law with the federal law.

Thirdly, the term "concurrent" may identify laws which

exist at the same time, each independently of the other, and

which, in a metaphorical sense, run side by side without

I

2 6 .

textuaJ collision. Whether S. 409 operates to deny valldlty to

the State law in such cases will depend largely upon the

intention of the Commonwealth Parliament as perceived	from the
true construction of its law.	On the other hand, where there
is	textual collision as described above, producing "direct
inconsistency", this result cannot be avoided by	a provision in

the federal law evincing an intention that the federal law is

not to cover the field:  - R v Loewenthal; Ex parte Blacklock

(1974) 131 CLR 338 at 346-347 per Mason J. Accordrngly, sub-s.

75 (1) of the Trade Practices Act cannot have been designed to
deal with direct inconsistency; rather, it is concerned to
negative "any suggestion of inconsistency otherwrse arising"
and to make it plain that the Trade Practices Act "is not an

exhaustive enactment on the topics with which it deals". These

are the terms used by Mason J in The Queen v The Credit

Trjhxnl (SA); Ex General Motors Acceptance Corporation,

Australia (1977) 137 CLR 545 at 564, in a ~udgment with which

Barwick CJ, Gibbs, Stephen and Jacobs JJ agreed. In the same

case (at 565-566), Murphy J said that S. 75 of the Trade

Practices Act expresses the intent that State laws on the

subjects dealt with in Part	V are not to be precluded except
where they "directly collide" with the provisions of the Act.

The Commonwealth and State legislatures both may

prescribe what a rule of conduct shall be and impose sanctions,

so that it is possible for the citizen to comply with both

laws. There is no "textual collision", but there nevertheless

2 7 ,

may br inconsistency. The applicant urged that thls was such	a
case. Dixon	J described the situation as follows in Ex parte

McLean (1930) 43 CLR 472 at 483:

when the Parliament of the Commonwealth and

the Parliament of a State each legislate

upon the same subject and prescribe what the
rule of conduct shall be, they make laws
which are inconsistent, notwithstanding that
the rule of conduct is identical which each

prescribes, and sec. 109 applies. That this

is so is settled, at least where the

sanctions they impose are diverse (Hume	v
Palmer (1926) 38 CLR 441). But the	=son

i s a t , by	prescribing	the	rule	to	be
observed,	the	Federal	statute	shows	an

intention to cover the subject matter and

provide what the law upon it shall be. If

it appeared that he Federal aw as

intended	supplementary	be	to	or	to
cumulative	upon	State	law,	then	no

inconsistencywould be exhibited in imposing
the same duties or in inflictang different

penalties. The inconsistency does not lie

in the mere coexistence of two	laws which
are susceptible of simultaneous	obedience.

It depends upon the intention of the

paramount Legislature to express by its

enactment, completely, exhaustively, or

exclusively, what shall be the law governing

the particular conduct or matter to whlch

its intention is directed. when	a Federal
statute discloses such an intention,	i t is
inconsistent with it for the law of	a State

to govern the same conduct or matter.

More recently, in The Queen v Winneke; Ex parte Gallagher

(1982) 152 CLR 211 at 218, Gibbs CJ said:

However, the fact that a Commonwealth Act

and a State Act impose different penalties

for the same conduct does not necessarily

mean that the laws are inconsistent. If the

two laws are made for the same purpose -

e.g. if they prescribe substantially

- identical rules on a particular s u b ~ e c t but

with different penalties for contravention -

it will be easy to conclude that the

Commonwealth law covers the whole sub~ect- matter, and that there is an inconsistency:

see Hume v Palmer (1926) 38 CLR 441 and Re

v L o F n t h a m p a r t e Blacklock ( 1974) 7%

C L m 1. However, the two laws may deal

with different subject matters, o that each

may validly apply in relation to the same

set of facts.

I draw attention to the expression "substantially identical

rules on	a particular subject". It also is to	be borne in
mind that Gibbs CJ was not in this passage	directing	his

remarks to the case where the Commonwealth Parliament had

expressly evinced an intention concerning the continuance of

concurrent operation of both laws. As I have sald, sub-s. 75

(1) is concerned to negative what otherwise would be

inconsistency from the coverage of the field by the federal

law. Hence, in my view, the applicant may succeed only if it

brings itself within the exception to	sub-s.	75 (l), namely
sub-S. 75 (2).

(It should be observed that the present is not where the Commonwealth law grants a case

a permission or right and the

State law prohibits that which is permitted or prohibits the
exercise of the right. Professor Sawer has described this as	a

third type of inconsistency ("Repugnancy and Inconslstency of

Legislation", (1980) 11 Cambrian L Rev 101 at 102). Mason J

observed in Ansett Transport Industries (Operations) Pty Ltd v

wardley (1980) 142 CLR 237 at 259-260, that cases of this kind

have -sometimes been treated as a separate head of

inconsistency, although even then they have generally been

related to the "cover the field" test apparently on the ground

that direct inconsistency is confined to a s~tuatlon in which

simultaneous obedience to both laws is impossible.)

Sub-section 75 (2) of the Trade Practices Act is

directed to a situation where an act or omission of	a person is
an offence both against	S. 79 (a provlsion in Part VI) and an
offence against the law of a State. The expression	in sub-s.

79 (2) "an act or omission of a person" identlfies acts or omissions which are the elements or integers of the offence,

not the evidence adduced to prove them: R v Hull (No. 2)	-
[l9021 St R Qd 53 at 57-58 per Griffith CJ; Connolly	v fleagher
(1906) 3 CLR 682; Riley v The Commonwealth (1985) 159	CLR 1 at
18-20 per Deane J.

Where a person has been convicted under either federal

or State law, one looks at the elements of that offence and asks whether those elements also constitute an offence under

the other law. If so, there is no liability to convlctlon for

contravention of that other law. The circumstance that there

is a difference in penalty on conviction 1s not sufficient for

the operation of sub-6. 75 (2).

If the federal offence was that for which the

conviction was recorded, then sub-s. 75 ( 2 ) operates as an

indicstion by the Parliament of the Commonwealth of its

intention that the federal law shall be the law governlng the

conduct in question; accordingly, the State law yields under

S. 109 of the Constitution. On the other hand, i f the temporal

sequence is reversed and the law under which the person has

been convicted is that of the State, then sub-s. 75 (2)

operates to withdraw the Commonwealth law from the field, not by operation of any constitutional prohibition or inhibition, but by a particular operation of the Commonwealth law itself.

The result is what the High Court recently has descrlbed as "mutual co-existence" between the two laws: Unlon Steampship

Company of Australia Pty Ltd	v Klng (26 October	1988, unrep., pp
15-16 of print).

This may be compared with the operation of sub-s. 30

(2) of the Acts Interpretation Act 1901, which provides, inter

alia, that where an act or omission constitutes an offence

under a federal Act and	a State Act and the offender has been
punished for that offence under the State Act,	he shall not be

liable to be punished for the offence under the federal Act;

see also Crimes Act 1914 S. 11. These two provislons proceed

in accordance with the principle that there is no prrma facle

presumption that a Commonwealth statute, by maklng it an offence to do a particular act, evinces an intention to deal with that act to the exclusion of any other law: The Queen v Winneke; Ex parte Gallagher (1982) 152 CLR 211 at 219, 224,

. . *

l

31.

Accordingly, sub-s. is enlivened by the entry of the flrst convlctlon. Section 7 5 ( 2 ) of the Trade Practices Act

-

79

of the Trade Practices Act and the State law In question

confer, in a sense, powers to prosecute for offences and sub-s.

75 (2) is concerned with what happens in the exercise of those

powers (cf - The Queen v Winneke; Ex parte Gallagher (supra) at

221, 233; Flaherty v Girgis (1987) 162	CLR 574 at 588).
Sub-section 75 (2) speaks when pursuant to one	of the two laws

proscribing the conduct in question there has been pursuit of

a person to conviction; that person is then not liable to

conviction for the offence under the other law.

That has not happened here. There has been no

conviction of the applicant under the State Act. Nor has there

been a prosecution under S. l 9 of the Trade Practices Act for

contravention of sub-s. 53 (eb) or otherwise. Accordingly, in

proceeding with the prosecution under the State Act, the

respondents are not engaging in any conduct which attracts

against them prohibition or certiorari pursuant to an order by way of, or in the nature of,

S. 163A of the Trade

Practices Act. For that reason, the present Application to

this Court should fail.
Even if the temporal sequence were changed and there had been a prosecution of the applicant under	S. 79 of the

Trade Practices Act, leading to conviction for contraventlon of

sub-s. 53 (eb),	that	would	not	necessarily	mean	that	a
* . . 1

32.

subsepuent prosecution of the appllcant under the State law

would attract a remedy under S. 163A of the Trade Practlces Act

on the footing that there had arisen an inconslstency whlch
required the State law to yleld. For this to happen, it would

be necessary for the applicant to show that the act or omission

which was an offence under the Trade Practice	Act was also an
offence under the State Act.

There is a question of the applicat on of sub-s. 75

( 2 ) to cases where the elements of the two offences do not

correspond, even though there may be some elements in common.
To continue with the above example, ~f the offence for whrch
the applicant had been convicted under the federal law had

consisted of four essential elements A + B + C + D, and the

offence under the State law consisted of the same four

essential elements, then there would be no difflculty In the

application of sub-s. 75 (2). The "mlrror Image" provlsions of

the Fair Trading Act, to which I have referred, may supply

examples. If, on the other hand, the State law had not four

but five essential elements, A + B + C + D + E, then it is

difficult to see how within the meaning of sub-s. 75 ( 2 ) an act

or omission of a person was both an offence agalnst S. 79, and

an offence under the State law. Yet again, l f the offence

under the State law comprised three essential elements, A + B +

C (that is to say a lesser number than that under the federal law), then it might be accurate to say that an act or omission

comprising elements A + B + C + D was an offence under both laws,-even though the presence of element D was superfluous as

regards the State law (cf - Riley v The Commonwealth (1985) 159

CLR 1 at 18-19 per Deane J).

In the present case, it may be true to say that the

federal law and the State law prescribe "Substantially

identical rules on a particular subject but with different

penalties for contravention" withln the sense of the remarks of

Gibbs CJ in The Queen v Winneke; Ex parte Gallagher (*).

That would be indicative of inconslstency if one were

considering the question in the absence of the expression of intention by the Parliament of the Commonwealth found in sub-s.

75 (1) of the Trade Practices Act. However, the intention is that there be concurrent operation of the two laws, in the

sense I excluded or limited, except as provided by have earlier discussed, and that thls is not to be

sub-s. 75 ( 2 ) . What

sub-s. 75 ( 2 ) requires for the displacement of the State law in

favour of the federal law is a conviction under the federal law

where an act or omission is both an offence against S. 79 of the Trade Practices Act and the State law. Sub-section 75 ( 2 )

thus doer not select as its criterion for operation the
existence of substantially identical rules	on a particular

subject with different penalties for contravention; it

requires a closer analysis of the integers of the offences, of

the kind I have indicated.

Counsel referred to important differences in the

integ*rs involved with a prosecution under S. 79 for

contravention of the applicant of sub-s.	53 (eb) of the Trade
Practices Act, on the one hand, and	on the other a prosecutlon
for a contravention of sub-s.	32 ( 1 ) of the State Act. There
are different limitation periods applicable,	3 years for the

federal offence, 12 months for the State offence. -- Mens rea is

not an element in the federal offence and the liabllity imposed

by S. 53 is strict in the absence of one of the defences

provided in S. 85: Darwin Bakery Pty Ltd v sully (1981) 51 FLR

90 at 96. Knowledge is required and will be presumed for the commission of the State offence, unless the accused proves the

matters spelled out in sub-s. 31 ( 3 ) of the State Act.

There are, as I have said, the defences provided in S.

85 of the Trade Practices Act (as to which see Adams v - Eta

Food6 Ltd (1987) 78 ALR 611) but, by way of emphasis of the

conclusion I have already indicated as to the proper outcome of

the present proceedings, one does not know of the extent to

which reliance might properly be placed by the applicant upon

S. 85 if a prosecution under S. 79 were instituted. However,

a comparison of sub-6. 85 (1) of the Trade Practices Act and

sub-6. 32 (3) of the State Act does indicate that in a given case it may be that whilst a defendant cannot prove the taking

of all reasonable precautions and the other matters spelled out

in sub-s. material with knowledge of its falsity 32 (3) (and he is deemed to have published the

or of Its mlsleading

character, thereby becoming liable to conviction under the

I

State-Act) nevertheless in d prosecution under S. 79 the accused, on the same facts, might be able to establish one or other of the defences provided for in paras. (a), ( b ) and ( c ) of sub-s. 85 (1). Therefore, if one assumes a prior conviction under the State Act, it by no means necessarily follows that the acts or omissions constituting the offence under the State

Act also constitute the offence against the Trade Practices

Act, ‘and thereby attract sub-s. 75 ( 2 ) .

The Application should be dismissed with costs.

I certify that this and the thirty four

(34) preceding pages are a true copy of the

Reasons for Judgment	of	his	Honour	Mr.
Justice Gummow.  Associate:  Date:

Counsel and Solicitors for	Sir Maurice Byers QC,
Applicant:	A. Robertson and T. Golding
instructed by Messrs Preehill Hollingdale h Page
Counsel and Solicitors for	K. Mason QC and J. Basten
the second Respondent:	instructed by the New South

wales Crown Solicitor

Date of Hearing:	24 October 1988
Date of Judgment:	8 November 1988