Judgment Suppressed

[2005] WASC 259

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   AA PTY LTD & ANOR -v- PATRICK WALKER, COMMISSIONER FOR FAIR TRADING & ORS [2005] WASC 259

CORAM:   MASTER SANDERSON

HEARD:   18 NOVEMBER 2005

DELIVERED          :   25 NOVEMBER 2005

FILE NO/S:   CIV 2329 of 2005

BETWEEN:   AA PTY LTD

First Plaintiff

BB PTY LTD
Second Plaintiff

AND

PATRICK WALKER, COMMISSIONER FOR FAIR TRADING
First Defendant

CLARE MCCLELLAND
TIM BANFIELD
Second Defendants

Catchwords:

Injunction application - Allegation of threat to 'name' plaintiffs - Turns on own facts

Legislation:

Consumer Affairs Act 1971 (WA), s 4, s 15, s 17, s 18, s 19, s 20, s 21, s 24

Fair Trading Act 1987 (WA), s 21(1)

Result:

Plaintiffs entitled to relief in a form to be determined

Category:    B

Representation:

Counsel:

First Plaintiff                :     Mr J C Giles

Second Plaintiff            :     Mr J C Giles

First Defendant             :     Mr R J Price & Mr S L Dworcan

Second Defendants       :     Mr R J Price & Mr S L Dworcan

Solicitors:

First Plaintiff                :     Solomon Brothers

Second Plaintiff            :     Solomon Brothers

First Defendant             :     Department of Consumer & Employment Protection

Second Defendants       :     Department of Consumer & Employment Protection

Case(s) referred to in judgment(s):

Attorney‑General v Great Eastern Railway Co (1880) 5 App Cas 473

Attorney‑General v Smethwick Corporation [1932] 1 Ch 562

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Case(s) also cited:

AA Pty Ltd v Australian Crime Commission (2005) 219 ALR 666

Annetts v McCann (1990) 170 CLR 596

Attorney­General v Cooper [1974] 2 NZLR 713

Australian Securities and Investments Commission v Rich (2005) 52 ACSR 374

Barras v Aberdeen Steam Trawling & Fishing Co Ltd [1933] AC 402

Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247

Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1

Cody v J H Nelson Pty Ltd (1947) 74 CLR 629

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576

Consolidated Press Holding Ltd v Federal Commissioner of Taxation (1995) 57 FCR 348

Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543

Flanders v Beatty (1995) 16 ACSR 324

Herbert Adams Pty Ltd v Federal Commissioner of Taxation (1932) 47 CLR 222

Herscu v The Queen (1991) 173 CLR 276

Higgins v Potter (1949) 50 SR (NSW) 77

JMA Accounting Pty Ltd v Commissioner of Taxation (2004) 139 FCR 537

Johns v Australian Securities Commission (1993) 178 CLR 408

Kioa v West (1985) 159 CLR 550

Maunsell v Olins [1975] AC 373

Platz v Osborne (1943) 68 CLR 133

Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96

Re Burton; Ex parte Lowe [2003] WASCA 306

Re Excel Finance Corporation Ltd; Worthley v England (1994) 52 FCR 69

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82

Redland Bricks Ltd v Morris [1970] AC 652

Reynolds v Times Newspapers Ltd [2001] 2 AC 127

Saraswati v R (1991) 172 CLR 1

Wainter Pty Ltd; Re New Tel Ltd (In Liq) (2005) 54 ACSR 284

Williams v Keelty (2001) 184 ALR 411

Williams v Spautz (1992) 174 CLR 509

1. MASTER SANDERSON:  By originating summons filed 9 November 2005, the plaintiffs sought the following orders:

   "1.A declaration that the first defendant and the second defendants do not have the power to communicate or threaten to communicate to any person or persons, or to the public at large, the following information:

   1.1the identity of the plaintiffs as persons about whom the first defendant and/or the Department (as defined in s.4(1) of the Consumer Affairs Act 1971 (WA)) have received complaints from consumers; and

   1.2the fact that the first defendant and/or the Department have received complaints from consumers regarding the plaintiffs,

   where the dominant purpose of communicating or threatening to communicate that information to a particular person or persons, or to the public at large, is to compel or to attempt to compel the plaintiffs to provide information to the first defendant and/or the Department.

   2.A declaration that the first defendant and second defendants are prohibited by s.24(2) of the Consumer Affairs Act 1971 (WA) from communicating or threatening to communicate to any particular person or persons, or to the public at large, the following information:

   2.1the identity of the plaintiffs as persons about whom the first defendant and/or the Department have received complaints from consumers;

   2.2the fact that the first defendant and/or the Department have received complaints from consumers regarding the plaintiffs,

   where the dominant purpose of communicating or threatening to communicate that information is to compel or to attempt to compel the plaintiffs to provide information to the first defendant and/or the Department.

3.An injunction restraining the defendants, without leave of this Honourable Court, from communicating to any person or persons, or to the public at large, the following information:

3.1the identity of the plaintiffs as being persons whom the first defendant and/or the Department have received complaints from consumers;

3.2the fact that the Commissioner and/or the Department have received complaints from consumers regarding the plaintiffs; and/or

3.3the details or general nature of any complaints from consumers received by the Commissioner and/or the Department regarding the plaintiffs.

4.Costs".

1. The form of the orders sought has given rise to some difficulty and I have determined that if any orders are to be made, it is not the first three orders sought in the originating summons.  To explain the reason why that is so and to resolve the issues between the parties, it is first necessary to deal with the facts.

2. The plaintiffs carry on a business of manufacturing, installing and retailing patios, garden sheds, games rooms and other home improvement products.  They trade under the names "AA1" and "AA2".  It is convenient to refer to the businesses as the "AA Business".  The plaintiffs have carried on the AA Business since 16 February 2005.

3. The AA Business was previously carried on until April 2002 by "M" and between April 2002 and 16 February 2005 by "N".  Between August 2000 and July 2003, the first plaintiff traded as "AA1" as an agent of M and then N.  The first plaintiff purchased the AA Business following litigation with N and M.  Nothing turns on these background facts and I simply recount them for the sake of completeness.

4. The plaintiffs' application is supported by an affidavit of Mr X ("X") sworn 9 November 2005.  X is a director of both plaintiffs.  Although it is not directly stated in his affidavit, it would seem that he is the moving hand of the plaintiffs and has responsibility for the day‑to‑day affairs of the AA Business.  X says that on 12 October 2005 he received a facsimile from the Department of Consumer and Employment Protection ("the

Department").  A copy of that letter appears as Annexure "X‑1" to X's affidavit.  The letter contains what is described as an "attachment".  The attachment runs to four pages and details a series of complaints the Department said they had received from members of the public who had contracted with the AA Business.

1. The letter itself identifies the Department and its role.  It says that a number of complaints had been received in relation to the AA Business.  However, in the form the letter was received from the Department it then did nothing more than detail these complaints in the attachment.  It did not call for any action on the part of the AA Business.

2. In fact, what had happened was that in the course of the facsimile transmission, the second page of the letter had been omitted.  How and why that happened is not presently of concern.  Counsel for the defendants accepted that what was received by X was the first and third page of the letter together with the attachment.  Exhibit C is the incomplete document.  It is not apparent from reading the document that a page is missing.  According to X, he was not under the impression after receiving the document that it was incumbent upon him to do anything.  Accordingly, he put the document to one side and carried on with his business.

3. On 25 October 2005 X received a telephone call from the first‑named second defendant (I will refer to her as Ms McClelland and the second‑named second defendant as Banfield).  X says that after identifying herself, Ms McClelland asked him why the Department had not received a written response to its facsimile.  X advised that he did not believe a response was called for.  After some discussion, Ms McClelland suggested that she and X meet.  A meeting was arranged for 4 pm on 27 October 2005.

4. Later on that same day, X received a second facsimile from the Department.  That facsimile was dated 27 October 2005.  However, it is agreed by all parties that it was received by X on 25 October 2005.  X says that once he had read that letter he realised for the first time that the Department was apparently investigating questions of unlawful conduct by the plaintiffs.  A copy of the letter from the Department appears as Annexure "X‑2" to X's affidavit.

5. It is worth pausing at this point to say something about the contents of both letters.  The second page of the letter of 12 October 2005 contained the following:

"The Department considers the high number of complaints currently lodged and the high frequency of contact calls made to the Department's call centre relating to [AA2] a serious concern.  The Department would appreciate receiving written comment from you within 7 working days on the attached list of complaints lodged at the Department and issues these have raised."

1. It is interesting to note that the letter was signed by a Meredith West.  Ms West describes herself as "Conciliation Officer, Building and Tenancy Industries Branch, Department of Consumer and Employment Protection".  As I have said, X did not receive page 2 of the letter which contained what I have quoted above.

2. The further letter sent 25 October 2005 contains the following:

   "As informed in previous correspondence with you, the Department considers the high number of complaints currently lodged and which continue to be received, a serious concern.  The Department would appreciate receiving written comment from you within 7 working days on the attached new list of complaints lodged at the Department and issues these have raised."

3. Once again, the letter is signed by Ms West and she describes herself in the way quoted above.

4. It is to be noted that in neither of these two letters is there any suggestion that the AA Business is the subject of an investigation. The invitation to the plaintiffs was to "comment" on the complaints. On the second page of the letter of 12 October 2005 there was a reference to s 21(1) of the Fair Trading Act 1987 (WA). This section prohibits a person in trade or commerce taking money when there are reasonable grounds for believing that supply of goods within the promised time will not be possible. There is no reference in either letter to the Consumer Affairs Act 1971 (WA) ("the Act"). The fact that Ms West who signed the letters describes herself as a conciliation officer might have led someone reading the correspondence to assume that the Department was not about to take any precipitous action.

5. On 27 October 2005 X attended the offices of the Department.  He was accompanied by his solicitor, Mr Jeremy Giles.  In attendance were Ms McClelland and Banfield, representing the Department.  It is common ground that the meeting lasted approximately one hour.  It is clear that the

discussion during the meeting ranged widely over matters touching and concerning the complaints.  But, for present purposes, there is only one question of fact which arises with respect to the meeting.  It is this: did either Ms McClelland or Banfield tell X that if he did not provide them with information in relation to the consumers who had complained, they would publicly name the AA Business as one about which complaints had been made and one which consumers ought approach with caution?  The plaintiffs say that threat was made explicitly; and if not explicitly, it was certainly implicit in what was said at the meeting.  The defendants deny that any such threat was made.

1. It is convenient to deal first with X's version of events as they occurred at the meeting.  X says that Ms McClelland and Banfield both at different times during the meeting advised him that the Department was not conducting any investigation into the AA Business.  Rather, they wanted to discuss the recent spike in the complaints the Department had received relating to the AA Business.  There was some discussion about the financial viability of the AA Business.  Banfield then provided X with a document listing 21 complaints alleged to have been received by the Department relating to the AA Business.  Banfield asked X to go through the list with him.  On the advice of Mr Giles, X declined to do so.  Rather, X indicated he would take the list away and comment on each complaint in due course.  X then says (par 14):

   "On 2 occasions during the meeting, including close to the completion of the meeting when I refused to discuss the 21 alleged complaints, Mr Banfield said to me words the effect of which were as follows.  Mr Banfield said I was putting him in a very difficult position by not providing the information he asked for.  He said that at the end of the meeting he had to decide whether to make an announcement to consumers about the complaints the Department had allegedly received about the [AA Business] (on one occasion he said he had to make the decision whether to publish the announcement and on another he said he had to decide whether to make a recommendation to the first defendant whether to publish an announcement).  He said my refusal to provide information made his decision much harder.  He then asked, on each occasion whether I wished to answer the question.  I declined."

2. There was then some discussion between Mr Giles and Ms McClelland and Banfield as to where the power to "name and shame" came from.  The use of this phrase "name and shame" is curious.  It is

perhaps a fair description of the use that might be made of the power, if it exists, to name a supplier of goods who is subject to a series of complaints.  As will be seen when the evidence of Banfield and Ms McClelland is considered, both deny using that phrase.  X does not actually say that the phrase was used by anyone at the meeting.  But it is clear that X and Mr Giles felt that the prospect of the Department naming the AA Business was a real one.  X does say that during the course of the meeting, Mr Giles put it to Ms McClelland and Banfield that they had threatened to "name and shame" the AA Business.  According to X, neither Banfield nor Ms McClelland denied the suggestion made by Mr Giles that the threat was made: see par 15.

1. X was cross‑examined on his affidavit.  The cross‑examination focused very much on the question of whether or not the direct threat to "name and shame" was made.  After listening to X, I was not satisfied that such a threat had been made in so many words.  It was clear, however, that as a consequence of the meeting, X felt that such a naming was in prospect.  It is not suggested by X in his affidavit nor did it emerge in cross‑examination that he was issued with a direct threat - that is to say he was told that if within three days he did not provide satisfactory answers to the complaints, the Department would take some steps to draw to the attention of the public concerns they had about the AA Business.

2. There then followed some discussion between Mr Giles and Ms McClelland and Banfield as to whether or not the Department would give the plaintiffs' solicitors 72 hours' notice of their intention to name the AA Business.  Ms McClelland and Banfield declined to do so.  The meeting broke up with each side reserving their position.  During the course of the meeting, Mr Giles, on behalf of the AA Business, had asked for seven days to respond to the complaints.  Ms McClelland and Banfield indicated that was too long and that they wanted a response within three days.  It is not entirely clear whether by the time the meeting broke up the plaintiffs had indicated that they would respond to the complaints at all.  Certainly there was no agreement between the parties as to when that should be done.

3. Both Banfield and Ms McClelland have sworn affidavits in opposition to this application.  Banfield's affidavit is the more comprehensive of the two.  He confirms the meeting and the nature of the discussion that took place between those attending.  He says that he asked X for an explanation as to why these complaints were being made.  He did not receive a satisfactory response.  He then says (at par 12):

"I said that I needed to hear [X's] 'side of the story' in relation to the complaints and how the complaints would be addressed.  I also said that I needed to know what would be done to ensure that the Department did not continue to receive complaints from consumers.  I said that I needed this information in order to make a decision as to whether it was appropriate for the Business to be named publicly.  What I meant by that was assessing whether to make a recommendation to the Commissioner for Fair Trading to issue a media release naming the Business."

1. Banfield then says that he advised X and Mr Giles of his concerns about the number of complaints being received.  He said he was looking for an explanation as to how those complaints had arisen "… for me to be clear in my mind to recommend to the Commissioner whether public naming was appropriate to protect future consumers who may experience delays of up to 6 months": par 21.  Mr Giles said that the AA Business had not prior to the meeting received all the complaints and were not presently in a position to comment.  Some discussion took place on this issue.  Banfield goes on (at par 22):

   "Mr Giles then said that 'twice during the meeting you have threatened my client with the naming and shaming of his company' or words to that effect.  I denied this.  I responded that I had not done so.  I said words to the effect:

   'The Department has not yet formed an opinion whether naming the Business was appropriate.  The purpose of asking the questions that I have is to weigh up whether it is necessary and appropriate to alert the public to problems that the Business may have.  I had hoped that information would have been provided at this meeting in relation to the complaints and future undertakings that would help the Department better understand and assess the situation with the Business'."

2. Banfield then goes on to confirm the discussions about the Department giving the plaintiffs' solicitors three days' notice of their intention to name the AA Business.  Banfield confirms that he declined to do so.  Banfield concludes his evidence in relation to the meeting in the following way (par 31):

"At no time during the meeting did I say, or I believe do anything to give an impression that the issuing of a media release would be done to compel [X] to answer the Department's questions in relation to his business practices; or that if [X] did not answer questions a media release would issue."

1. Much of Ms McClelland's affidavit is taken up with background which is uncontroversial and of no real relevance to the dispute between the parties.  However, Ms McClelland does say (at pars 22 and 23):

   "Mr Giles said that as his client had been threatened twice during this meeting with 'naming and shaming', he considered that any time less than seven days to respond (to the complaints) was unreasonable.  He asked for an undertaking that the Department would allow seven days for his client to respond to individual complaints.

   Mr Banfield denied that he had threatened to 'name and shame' [AA].  Mr Banfield said words to the effect that 'the purpose of the meeting was to obtain information so that an assessment could be made as to whether it was appropriate to name [AA] publicly.  The reason for naming [AA] would be to protect consumers.' "

1. After reading the affidavits filed by the parties and after hearing X cross‑examined, I am satisfied that the true factual position was as follows. When X attended the meeting on 27 October 2005, he was aware that a number of complaints had been made about the AA Business. Rightly or wrongly, he had not given any consideration to those complaints by, for instance, looking at the files the AA Business held to ascertain the present contractual position. He went to the meeting expecting a general discussion. For their part, Ms McClelland and Banfield were concerned about the large number of complaints they had received about the AA Business. They felt the plaintiffs had been uncooperative and had not responded within a reasonable time to requests to provide information in relation to the complaints. Banfield at least, and probably Ms McClelland, believed that it was open to them to recommend to the first defendant that a media statement be released alerting the public that complaints had been received about the AA Business. They believed that it was up to the first defendant to decide whether or not he acted on their recommendation. As it turns out, under the legislative framework of the Act, they were mistaken in their belief.

1. I am not satisfied that Banfield and Ms McClelland threatened that if the AA Business did not provide information as to the complaints then the AA Business would be publicly named.  In other words, I am not satisfied that there was a direct unequivocal threat that linked the failure to provide the information with the naming.  Rather, Ms McClelland and Banfield indicated that if the complaints were not addressed, that might lead in the event to their recommending naming of the plaintiffs to the first defendant.  In the end it is a question of degree.  But insofar as a finding of fact is necessary, I accept the version of events put forward by the defendants.

2. Having made that finding of fact, it is clear that the plaintiffs are not entitled to the declaration sought in par 1 of the originating summons. Nor are they entitled to a declaration in terms of par 2 as it presently stands. In any event, no such declaration, in the circumstances, is necessary. Counsel for the defendants conceded at the commencement of his submissions that if the second defendants or any other officer of the Department had threatened to publicly name the plaintiffs if information in relation to the complaints was not provided, then that threat would be an abuse of power. It is clearly not sanctioned by the Act. So there was no dispute between the parties and no declaration is necessary. In any event, having concluded that no threat was made, the issue raised by par 1 of the originating process falls away.

3. The question then left to be determined can be put in this way - given the present state of affairs - the complaints made to the Department and the failure of the AA Business to respond - can the Department name the plaintiffs publicly and, if so, are there any preconditions to that naming? It was the plaintiffs' position that the Act does not provide the first defendant or the Department with any power to name the plaintiffs in the present circumstances. Rather, the Act specifically prohibits such a naming. The defendants say that the Act does provide the Department with a power to name the plaintiffs. They accept that this power is hedged about with safeguards provided by the rules of natural justice. They would even go so far as to say that in the present circumstances, the rules of natural justice have been satisfied. But even if that were not so, the power to name is available and can be used.

4. A determination of these questions requires consideration of the Act. By s 4 of the Act, the "Department" is said to mean "the department of the Public Service of the State principally assisting the Minister in the administration of this Act". "Commissioner" is said to mean the Commissioner for Fair Trading. Section 15 allows for the appointment of

the Commissioner and such other officers as are necessary to assist him in carrying out "his functions" under the Act or any related legislation: see s 15(1).

1. Section 17 of the Act relevantly reads as follows:

   "The functions of the Department are — 

   (a)to promote the interests of consumers and to assist them to a greater awareness in relation to their assessment and use of goods and services;

   (b)to collect, collate and disseminate information in respect of matters affecting the interests of consumers;

   (c)to receive complaints from consumers concerning matters touching their interests as consumers, to consider and, if the Commissioner considers it warranted, to investigate those complaints and to take such action in respect of those complaints as seems proper to the Commissioner;

   (d)to receive complaints of fraudulent or deceptive practices in relation to matters that affect or are likely to affect the interests of consumers and to make such investigations and inquiries and to take such other action in respect of those complaints as seems proper to the Commissioner".

2. Section 18 allows the Commissioner to institute or defend legal proceedings on behalf of consumers. Essentially, the section allows the Commissioner to conduct litigation on behalf of a consumer who is dissatisfied with the conduct of a supplier of goods or services. In the present case for instance, it would be open to the Commissioner if he chose to do so, to take action on behalf of one or all of the persons who have lodged complaints against the AA Business. There is no suggestion that the Commissioner has decided to take such proceedings or that even the most peripheral consideration has been given to such action. But the power is there for the Commissioner to use should he choose to do so.

3. Section 19 deals with the power of the Commissioner to investigate, enquire and obtain information. Quite extensive powers are given to the Commissioner under this section. For instance, under s 19(1)(d), the Commissioner may at all reasonable times search any premises and take samples of any stocks or goods found on the premises. The powers conferred by s 19 appear to relate back to s 17(c) and (d). I will return to

this interrelationship and the powers of the Commissioner later in these reasons.

1. Section 20 requires that sufficient notice be given to any person to whom questions are put to allow for a proper answer to those questions. Section 20 provides a defence to a request for information made under s 19. Section 21 then deals with a failure to supply information. Section 24 deals with the requirement to keep information private. It is of some importance in the context of this application and it is in the following terms:

   "(1)This section applies to any person who is or has been the Commissioner, an officer, whether permanent or temporary, of the Department or the former Bureau of Consumer Affairs or a member of the Committee.

   (2)A person to whom this section applies shall not, either directly or indirectly, except in the performance of a duty under or in connection with the relevant Act, make a record of, or divulge or communicate to any person, any information concerning the affairs of any other person acquired by him by reason of his office or employment under or for the purposes of this Act or another Act (the “relevant Act”).

   Penalty: $500.

   (3)Nothing in subsection (2) prohibits a person who exercises powers or performs duties or functions under this Act and also exercises powers or performs duties or functions under the Petroleum Products Pricing Act 1983 from making a record of, or divulging or communicating to any person, in the course of the exercise of his powers or the performance of his duties or functions under that Act, any information acquired under or for the purposes of this Act."

2. It was the plaintiffs' position that the Department did not have the power under s 17 or otherwise in the present circumstances to name the AA Business. It was said that the power could not arise under s 17(a) or (b). Counsel submitted that these were two general sections which allowed the Department to make public statements of a general nature beneficial to consumers. Counsel used as an example a situation where the Department formed the view that it would be in the interests of

consumers to publish material outlining the risks and pitfalls when obtaining mortgage finance.  A leaflet or flyer might be compiled by the Department and be made available from government offices.  But it was not, counsel submitted, open under either subpars (a) or (b) for the Department to name a party against whom a number of complaints had been made.  This was not a question of natural justice - the submission was not put that the Department could not name a party unless that party had been given the opportunity to answer the complaints.  Rather, it was a question of power.

1. Counsel supported this submission by reference to the scheme of the Act. Section 17(c) and (d) allow for investigations. In subpar (c), the investigation is only initiated after the Commissioner has decided that an investigation is "warranted". Once the Commissioner has taken that decision and an investigation is commenced, then the Commissioner has the power set out in s 19 and those powers are hedged about with the safeguards to be found in s 20. Counsel submitted that s 17 was not to be read in isolation, but in the light of other provisions in the Act. Reference was made to the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 ‑ 382 per McHugh, Gummow, Kirby and Hayne JJ.

2. The defendants on the other hand, maintained that the powers conferred by s 17(a) and (b) was unfettered. It was submitted that these two subsections were to be given their plain meaning. On any plain meaning, it was said, the power to name would arise. Further, it was said that armed with the express statutory power, the Department was authorised to do everything that can be fairly regarded as incidental or consequential to the power itself - in this case naming the plaintiffs. Reference was made to Attorney‑General v Great Eastern Railway Co (1880) 5 App Cas 473 and Attorney‑General v Smethwick Corporation [1932] 1 Ch 562.

3. In my view, it is clear that the Department does not have the power to name the plaintiffs in the present circumstances. I am not satisfied that such a power arises under s 17(a) and (b). The general powers in those two subsections must yield to the specific power found in subs (c) and, to an extent, in subs (d). I accept the argument of the plaintiffs that to read s 17 in any other way would facilitate a circumvention of the protection on the powers of investigation of the Commissioner to be found in s 20. For instance, it may be argued that the time given to the plaintiffs to provide information about the complaints received against them was unreasonable. Such an argument would be of no consequence if the

Department was acting under powers conferred by par 17(a) and (b). Leaving the rules of natural justice to one side, the plaintiffs have no right to a reasonable time within which to respond to the enquiries. But if there is an investigation under way, then they are afforded the protection of s 20 and they can raise as an issue the question of whether or not they have been given reasonable notice of the requirement that they respond to the complaints.

1. It seems clear from the evidence in this case that from the first the officers of the Department including the second defendants, have been operating in a way which is not consistent with the terms of the Act. As I have mentioned above, the letters that were sent to the plaintiffs on 12 October 2005 and 25 October 2005 were from Ms West in her capacity as a conciliation officer. The Act makes no mention of conciliation. It may make perfect sense for the Department to try and resolve complaints from consumers through discussions with suppliers of products. But such an approach is not facilitated or contemplated by the Act. The Department is given no specific power in relation to a recalcitrant supplier who declines to cooperate in the conciliation process. Indeed, there is no statutory framework which allows the Department to insist that a supplier respond when they are advised that complaints have been made against them. A supplier contravenes no statutory provision if they ignore the Department's correspondence. The Department's power in relation to complaints is limited to s 17(c) and (d) of the Act. In other words, there is a direct but limited right to investigate.

2. Subsections (c) and (d) of s 17 appear to anticipate two slightly different, if overlapping situations. Under subs (c), the Department is empowered to receive complaints and to consider those complaints. Once they have done that, then it is up to the Commissioner to determine whether an investigation is warranted. If the Commissioner decides that an investigation is warranted, then that investigation is undertaken by the Department and the Commissioner can then determine what action is to be taken. Doubtless that could involve naming a person. That would be a decision for the Commissioner.

3. Under subs (d), the Department is empowered to receive complaints "of fraudulent or deceptive practices … that affect the interests of consumers".  That subsection appears to anticipate dishonest conduct - the element of dishonesty not being a requirement of subs (c).  If the Department receives complaints of this nature - complaints where dishonesty is a factor - it is authorised to investigate those complaints without the approval of the Commissioner.  It is only after investigation

has taken place that the Commissioner is called upon to decide what action should be taken.  Again, it would seem that naming of a party would be an option available to the Commissioner.

1. Given that in my view there is no power in the Department to name the plaintiffs in the circumstances of this case, it follows that the second defendants are prohibited by s 24(2) from publicly naming the plaintiffs. They are under no duty pursuant to the Act nor indeed do they have any obligation under the Act to divulge any information regarding the complaints. They are clearly covered by the secrecy provisions and neither they nor any other officer of the Department can lawfully make public the fact that complaints have been received about the AA Business.

2. All this then leads to the question of whether or not declarations ought be made or injunctions issued against the defendants.  In my view, neither of the orders sought in pars 2 and 3 of the originating process are appropriate.  As I have said O 2 has about it the same difficulty as O 1.  It is framed on the assumption that information will be released to the public by the Department for the purpose of forcing the plaintiffs to deal with the complaints made to the Department.  It may be that a declaration is appropriate to reflect the conclusion I have reached in these reasons.  That is a matter which should be the subject of discussions between counsel and, if necessary, further argument.

3. I am also not satisfied that it would be appropriate to grant an injunction against the named defendants. So far as the first defendant is concerned, there is no suggestion at all that he ever intended to name the plaintiffs. The evidence shows that to date no recommendation has been made to him. So it would not be appropriate to issue an injunction against him. So far as the second defendants are concerned, in the light of these reasons and their obligations under s 24, there is no reason to expect that they would make any statement about the AA Business to the public. It may be appropriate for counsel to give certain undertakings to avoid any necessity for the issue of an injunction either now or in the future. This is a matter for further submissions.

4. I should finally say a word about the defendants in these proceedings. During the course of argument I raised with counsel whether or not the present defendants are the proper defendants in the action. It is, after all, the "Department" as defined in the Act which is charged with responsibility for performing the functions set out in s 17. Both counsel acknowledged the difficulty. Counsel for the defendants indicated that it was not a point which the defendants would take. They

were prepared to accept that the present defendants were the proper defendants and deal with the matter on that basis.  Counsel and the Department are to be commended for that pragmatic approach.

1. I will hear further argument as to the form of the orders to be made and with respect to costs.