Johnston v Egg Marketing Board of NSW

[1965] HCA 40

HIGH COURT OF AUSTRALIA

Taylor J.

JOHNSTON v. EGG MARKETING BOARD OF N.S.W.

(1965) 112 CLR 343

30 July 1965

Trade and commerce

Trade and commerce—Australian Industries Preservation—Prohibition on giving concession or reward upon condition of exclusive dealing in goods or services—Statement of claim—Sufficiency of allegation of breach of prohibition—Australian Industries Preservation Act 1906-1950 (Cth), s. 7A*. Trade and Commerce—Australian Industries Preservation—Australian Capital Territory—Application of legislation—Seat of Government (Administration) Act 1910-1947 (Cth), s. 6—Australian Industries Preservation Act 1906-1909 (Cth)—Australian Industries Preservation Act 1910 (Cth)—Australian Industries Preservation Act 1906-1950 (Cth)—Acts Interpretation Act 1901-1964 (Cth), s. 10A.

Decision

July 30.
TAYLOR J. delivered the following written judgment: -
In this application the defendants to a suit in this Court move, inter alia, to strike out the plaintiff's statement of claim on the ground that it discloses no cause of action. Alternatively, an order striking out several paragraphs of the statement of claim is sought. (at p344)

2. There are a number of defects in the statement of claim which were the subject of discussion during the course of argument but it is apparent that the suit is one in which the plaintiff seeks to recover damages for alleged contraventions of s. 7 (1) and s. 7A (1) of the Australian Industries Preservation Act 1906-1950 (Cth). Pursuant to s. 11 of that Act treble damages are sought for the injuries which the plaintiff alleges he has sustained. It may be of some importance to observe that it is not alleged in the statement of claim that the damages complained of, or any part of those damages, resulted severally from the alleged breaches; on the contrary, the allegation is made that "By reason of the actions and activities of each of the defendants as aforesaid in contravention of the provisions of Pt II of the Australian Industries Preservation Act 1906-1950 the plaintiff has been and still is being injured in his property". Particulars of damage are thereafter given in the statement of claim. (at p344)

3. By s. 7A (1) of the Act in question any person who, in relation to trade or commerce with other countries or among the States, either as principal or agent, in respect of dealings in any goods or services gives offers or promises to any other person any rebate, refund, discount, concession, or reward, for the reason, or upon the condition, express or implied, that the latter person, inter alia, deals, or has dealt, or will deal, or intends to deal exclusively with any person, either in relation to any particular goods or services or generally, is guilty of an offence. The expression in this provision "with other countries or among the States" may be disregarded for reasons which hereinafter appear but it is important to notice that the rebate, refund, discount, concession, or reward must be shown to have been given offered or promised for the reason or upon the condition that the person to whom the rebate, refund, discount, concession, or reward is given offered or promised deals or has dealt or will deal or intends to deal exclusively with the person giving such rebate, refund, etc. Apparently it was the intention of the draftsman that pars. 8, 9 and 19 of the statement of claim should allege a contravention of this provision. These paragraphs allege that it was a term of the first named defendant's contracts with the retailers with whom it dealt in the Australian Capital Territory that each retailer would purchase eggs from that defendant and from no other person, that it was a term of each of the said contracts that each said retailer should receive a concession or reward according to the quantity of sales made by the said retailer, and, finally by par. 19, that the first named defendant gives and continues to give, offers and continues to offer concessions and rewards pursuant to the contracts thereinbefore "complained of". There is, in my view, no sufficient allegation in the statement of claim that the concessions or rewards referred to in par. 9 were given or promised for the reason or upon the condition that the retailers should deal exclusively with the first named defendant. It is consistent with the allegations appearing in the statement of claim that those concessions or rewards were available to retailers solely as incentives to increase their respective turnovers and not by reason of or conditionally upon the retailers concerned dealing exclusively with the first named defendant. Accordingly I am of the opinion that the statement of claim fails to allege facts constituting a contravention of s. 7A (1) and that, having regard to the fact that the plaintiff's damages are alleged to have resulted from the totality of the "actions and activities of each of the defendants as aforesaid", the statement of claim is wholly defective and should be struck out. (at p345)

4. But there is an additional fundamental difficulty in the way of the plaintiff maintaining his statement of claim in its present form. Section 7 (1) of the Act provides that any person who monopolizes or attempts to monopolize, any part of the trade or commerce with other countries or among the States, is guilty of an indictable offence and it is with this provision that the alleged second contravention of the Act is concerned. When considering this provision it is important to bear in mind that s. 6 of the Seat of Government (Administration) Act 1910-1947 (Cth) provides that the Australian Industries Preservation Act 1906-1909 shall apply in the Territory as if the words "with other countries or among the States", wherever they occur in relation to trade or commerce, were omitted. This section was enacted by the Seat of Government (Administration) Act 1910 which was assented to on 25th November 1910 but, pursuant to s. 2, the Act was to commence on the proclaimed day referred to in s. 5 of the Seat of Government Acceptance Act 1909. The "proclaimed day" was 1st January 1911 so that the Seat of Government (Administration) Act 1910 came into force on that day. But, also in 1910 s. 7 of the Australian Industries Preservation Act 1906-1909 was amended. Prior to the amendment that section read as follows: "(1) Any person who monopolizes or attempts to monopolize, or combines or conspires with any other person to monopolize, any part of the trade or commerce with other countries or among the States, with intent to control, to the detriment of the public, the supply or price of any service, merchandise, or commodity, is guilty of an offence. Penalty: Five hundred pounds. (2) Every contract made or entered into in contravention of this section shall be absolutely illegal and void." However in 1910 the Act as amended to 1909 was amended in many respects and, in particular, by omitting from this section the words which I have italicized. These amendments were effected by Act No. 29 of 1910 which was also assented to on 25th November 1910 and it came into operation on that day. The result is that when the Seat of Government (Administration) Act 1910 came into operation the current Australian Industries Preservation Act was the Australian Industries Preservation Act 1906-1910. However, the former Act purported to apply the Australian Industries Preservation Act 1906-1909 to the Australian Capital Territory with the qualification made in s. 6 of that Act. (at p346)

5. In this curious legislative muddle one thing is clear. It was not the intention of Parliament as declared by s. 6 of the Seat of Government (Administration) Act 1910 - which provision still remains in its original form - that the Australian Industries Preservation Act as amended in 1910, or subsequently, should apply in the Australian Capital Territory. It was the declared intention of Parliament that the Australian Industries Preservation Act 1906- 1909 should apply subject to the qualification which s. 6 of the former Act makes. Nor, in these circumstances, can the plaintiff call in aid the provision of s. 10A of the Acts Interpretation Act 1901-1964 (Cth) for clearly enough that section has no application to such a case. The latter section, it may be noted, was not enacted until 1916 and even if s. 2 of the Act (introduced in 1937) has the full effect for which the plaintiff contends, it is plain that s. 10A applies only to cases where an amendment to an Act which is referred to in another Act is made subsequently in point of time to the coming into force of the latter Act. This, of course, means that s. 6 of the Seat of Government (Administration) Act does not operate to apply s. 7 (1) of the Australian Industries Preservation Act in its present form and with the qualification made by the former section to the Australian Capital Territory. At the most it applies s. 7 (1) in its original form with that qualification and, this being so, it is clear that the statement of claim fails to allege a contravention of the section in that form. Even if it sufficiently alleges an attempt to monopolize some part of the trade and commerce within the Territory it fails completely to allege that the attempt was made "with intent to control, to the detriment of the public, the supply or price of any service, merchandise or commodity". I should add that even if the plaintiff had attempted to rely on the provisions of s. 7 (1) in its present form unassisted by the provisions of s. 6 of the Seat of Government (Administration) Act a further difficulty would have presented itself. The question would have arisen whether in view of the provisions of the latter section the Australian Industries Preservation Act should be held, of its own force, to apply generally to the Australian Capital Territory. It is unnecessary, however, to answer this question for even if it were to be resolved in favour of the plaintiff it would not avail him for there is nothing in the statement of claim to suggest that the activities of the firstnamed defendant constituted an attempt to monopolize any "part of the trade or commerce with other countries or among the States". (at p347)

6. For these reasons I am of the opinion that the statement of claim should be struck out and it becomes unnecessary to discuss the many objections to its form which were the subject of the discussion during the course of argument. The plaintiff will, however, have leave to file a fresh statement of claim but it would be advisable, if he wishes to pursue this course, to have regard to these objections when preparing a fresh pleading. (at p348)

Orders

Order that statement of claim be struck out. Plaintiff to have liberty to file a fresh statement of claim within one month from the date of this order. Plaintiff to pay the defendants' costs of this application.