Melbourne Home of Ford Pty Ltd v Trade Practices Commission

MELBOURNE HOME OF FORD PTY. LTD. v. TRADE PRACTICES COMMISSION AND BANNERMAN
(No. 2) (1979) 40 FLR 428
Trade Practices

COURT

FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
Smithers J.(1)

CATCHWORDS

Trade Practices - Power of Commission to obtain information, documents and evidence - Notice under s. 155 - Validity of notice - Uncertainty - Relevance of information sought - Oppressive request - Confidential information - Trade Practices Act 1974 (Cth.), ss. 155, 163A.

HEADNOTE

Each of the applicants received a notice issued under s. 155 of the Trade Practices Act 1974 from the second-named respondent requiring the furnishing of information and production of documents in relation to suspected breaches of s. 45 of the Act by the addressee of the notice.

The applicants commenced proceedings under s. 163A of the Act challenging the validity of the notices on several grounds, one of which was that the notices did not oblige the applicants or any of them to answer questions or deliver documents which might tend to expose them to a penalty. Smithers J. stated a case to the Full Court on this ground and other grounds, the answers to which are reported in Melbourne Home of Ford Pty. Ltd. v. Trade Practices Commission and Bannerman (1979), 36 FLR 450.

Consequent upon the Full Court's answers to the case stated the application continued before Smithers J. wherein the validity of the notice was challenged on the grounds, inter alia, that the notices were so uncertain as to render them void and that the requirements of the notices were beyond the powers of the second-named respondent.

Held: (1) Save for certain requirements the notices were valid.

(2) Section 155 authorizes the chairman, when he has reason to believe that a person is capable of furnishing information or producing documents relating to a matter that constitutes or may constitute a contravention of the Act, to demand only such information or documents as do in fact relate to such matter.

(3) It must be apparent from the terms of the notice that the information sought does in fact relate to a relevant matter.

Observations made upon oppression and confidentiality.

HEARING

Melbourne, 1979, July 16-17; October 12. #DATE 12:10:1979

APPLICATION.

Application to Federal Court of Australia (Smithers J.).

The material facts appear from the judgments.

A.H. Goldberg Q.C. and C.A. Sweeney, for the applicants.

R.C. Tadgell Q.C. and M.E.J. Black, for the respondents.

Cur. adv. vult.

Solicitors for the applicants: Corr & Corr.

Solicitors for the respondent: B.J. O'Donovan (Acting Commonwealth Crown Solicitor).

R. McK. ROBSON

JUDGE1

October 12.

SMITHERS J. delivered the following written judgment.

On 28th July, 1978, the Chairman of the Trade Practices Commission (the chairman) purported to issue a notice under s. 155(1) of the Trade Practices Act (the Act) to a number of companies who may be called collectively if not entirely accurately "the Ford dealers". that notice required each of the companies to furnish information to the Trade Practices Commission (the Commission) by 28th August, 1978, as requested in the first schedule to the notice and to produce the documents described in the second schedule to the notice. A number of recipients of the notice issued applications under s. 163A of the Act for declarations that for various reasons the notices were invalid. At the request of the Commission and the chairman, the Ford dealers not opposing, I stated a case for the Full Court raising questions concerning the validity of the notices and the obligations of the companies thereunder. On 28th March, 1979, the Full Court answered the questions as set forth below. In general the answers given by the Full Court do not in any way lend aid to the Ford dealers' application under s. 163A. (at p429)

(His Honour then set out the terms of the notice.) (at p429)
Section 155 of the Act provides, so far as is relevant for the purposes of this notice, as follows:

"155(1) Where the Commission, the Chairman or the Deputy Chairman has reason to believe that a person is capable of furnishing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of this Act . . . a member of the Commission may, by notice in writing served on that person, require that person -

(a) to furnish to the Commission, by writing signed by that person or, in the case of a body corporate, by a competent officer of that body corporate, within the time and in the manner specified in the notice, any such information;

(b) to produce to the Commission, or to a person specified in the notice acting on its behalf, in accordance with the notice, any such documents; or

(c) to appear before the Commission at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents.

(5) A person shall not -

(a) refuse or fail to comply with a notice under this section to the extent that the person is capable of complying with it;

(b) in purported compliance with such a notice, knowingly furnish information or give evidence that is false or misleading; or

(c) obstruct or hinder an authorized officer acting in pursuance of sub-section (2).

Penalty: $1,000 or imprisonment for 3 months.

(7) A person is not excused from furnishing information or producing or permitting the inspection of a document in pursuance of this section on the ground that the information or document may tend to incriminate the person, but the answer by a person to any question asked in a notice under this section or the furnishing by a person of any information in pursuance of such a notice, or any document produced in pursuance of such a notice or made available to an authorized officer for inspection, is not admissible in evidence against the person -

(a) in the case of a person not being a body corporate - in any criminal proceedings other than proceedings under this section; or

(b) in the case of a body corporate - in any criminal proceedings other than proceedings under this Act."

Section 156 of the Act provides as follows: (at p430)

"156(1) A member of the Commission, or a person authorized by a member of the Commission, may inspect a document produced in pursuance of a notice under section 155 and may make copies of, or take extracts from, the document.

(2) The Commission may, for the purposes of this Act, take, and retain for as long as is necessary for those purposes, possession of a document produced in pursuance of a notice under section 155 but the person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by a member of the Commission under his hand to be a true copy and the certified copy shall be received in all courts as evidence as if it were the original.

(3) Until such certified copy is supplied, the Commission shall, at such times and places as it thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorized by that person, to inspect and make copies of or take extracts from the document." (at p431)
(His Honour then set out the case stated to the Full Court and the answers thereto: see Melbourne Home of Ford Pty. Ltd. v. Trade Practices Commission and Bannerman (1979) 36 FLR 450, at p 465 .) (at p431)
The original applications are now before me. (at p431)
Mr. Goldberg Q.C. who with Mr. C.A. Sweeney appeared for the applicants did not suggest that I could or should disregard the answers of the Full Court. The section presently conferring jurisdiction on the court is s. 163A, sub-s. (1)(a) of which states:

"(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 of any provision of this Act, other than Division 2 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." (at p431)

The applicants in this case bring themselves under the second limb of s. 163A(1)(a) and seek a declaration that the notice is not a valid notice under s. 155(1) of the Act. The declarations sought by each of the applicants in substance were based on three grounds: (a) that the notices do not oblige the applicants or any of them to answer questions or deliver documents which might tend to expose them to a penalty; (b) that the notices do not oblige the applicants or any of them to comply with the requirements or any of them contained in the said notices; (c) that the notices are wholly (or alternatively partly) void and without effect in law. (at p431)
The first of these grounds was the subject of questions raised in the stated case and were answered by the Full Court against the applicants. Only the two latter grounds were argued on the resumed hearing before me it being said: (a) that the terms of the notices were so uncertain as to render it void; and (b) that the requirements of the notices are to be seen by the terms thereof to extend beyond the chairman's statutory powers. (at p431)
Mr. Goldberg pointed out that failure to comply with a notice might give rise to the heavy penalty prescribed in s. 155(5). For this and other reasons he said that a notice under s. 155 must be expressed with sufficient clarity to enable the recipient to comprehend what was required of him. So much may be accepted. (at p431)
He contended that the notice in question did not fulfil this requirement in a number of respects. (at p431)
It was said that the description of the matter alleged by the notice to be the relevant contravention of the Act, or that might be such contravention, was couched in such terms that the recipient of the notice just did not know "what it was about", and therefore could not identify the information or document required. The major alleged defect of the notice in this respect was that the relevant "matter" is described as an arrangement or understanding between the company which received the notice and corporations other than the recipient with respect to prices for Ford spare parts supplied not by the recipient company but by those other corporations in competition with each other. But this is not the case. On the ordinary grammatical meaning of the notice the "matter" as described therein is an arrangement or understanding between the recipient company and other corporations concerning prices of Ford spare parts supplied by the recipient corporation and other corporations all in competition with each other. I would add that even were the situation such as is alleged I do not think there would be any relevant uncertainty in the notice. (at p432)
It was next contended that the definition of "Ford spare parts" appearing in the notice introduced such uncertainty as to make the notice unintelligible. According to that definition "Ford spare parts" means, "any electrical, mechanical or structural component of Ford motor vehicles and includes body panels, accessories and mechanical parts". It was said that by virtue of this definition the notice was to be understood as referring to motor parts actually incorporated in complete vehicles, that there was no trading in such parts and the notice was therefore absurd and ineffectual. However, despite some support for this contention in the Oxford English Dictionary arising out of the meaning of the word "component", it is my opinion that no reader of the notice would fail to understand that the definition refers to parts not incorporated in complete vehicles but to parts which are spare and as such are intended to be incorporated in vehicles by way of replacement for parts of complete vehicles or to be otherwise incorporated in complete or roadworthy vehicles and which are commonly the subject of commercial transactions as spare parts.

RELEVANCE OF INFORMATION SOUGHT TO THE CONTEMPLATED CONTRAVENTION (at p432)
Mr. Goldberg pointed out that, with respect to the contemplated contravention referred to in the notice, and which is in effect the foundation of the chairman's demand for information, no date of the commission of the contravention is stated. He contended that in the absence of the date of the contravention it is impossible to test the relevance thereto of the specified information which the chairman seeks in the notice. He submitted that it is a condition of the recipient's duty to furnish the information sought that the relevance thereof to the contemplated contravention should be apparent on the face thereof. (at p432)
He contended also that with respect to various items of information sought the relevance thereof to the specified contravention was seriously in question, on the face of the notice. He pointed out, for instance, that it was consistent with the notice that the contravention in question was committed on or after January 1978, and said that in that event, questions concerning conduct, meetings and marketing behaviour which occurred in 1976 or 1977 would be irrelevant. In this respect he relied upon the decision in Riley McKay Pty. Ltd. v. Bannerman (1977) 31 FLR 129, at pp 136-137 and particularly the comments of Bowen C.J. Those comments were made in respect of demands contained in a notice given pursuant to s. 155 relating to an advertisement of a stated date said to be knowingly misleading. The information sought was the state of knowledge of the recipient as to the truth of the matter stated in the advertisement at a date subsequent to the stated date of the advertisement. Clearly as the learned Chief Judge said, that demand was, on the face of the notice, insufficiently relevant. One would accept in full what was said by the learned Chief Judge but it is not significant in relation to the demands in the notice in this case. Nothing in the notice with which these proceedings are concerned can be so seen to be irrelevant. What the notice is intended to achieve is the acquisition by the chairman of information relating to conduct which constituted or may have constituted a contravention of the Act committed at any time since the commencement of the Act. A notice may be referable to a contravention or possible contravention the date of which is not known to the chairman. (at p433)
It was said also that the boundaries of relevance were transgressed in that the definition in the notice was in terms stating that it includes "terms or conditions relating to discounts, allowances, rebates or credits given or allowed in relation to the supply of Ford spare parts". The contention was that as the notice by its terms concerned a contemplated contravention of the Trade Practices Act relating exclusively to fixing, controlling or maintaining prices for Ford spare parts; inquiries by the Commissioner concerning allowances, rebates or credits given or allowed in relation to the supply of Ford spare parts were outside the scope of the contemplated contravention and accordingly outside the limits of permissible inquiries. It was said that a demand that information concerning such matters should be furnished was in the circumstances beyond the power of the chairman and invalidated the notice, or at least, all demands therein relating to such matters. However, this contention cannot be sustained. It is clear that terms and conditions of supply of spare parts which relate to discounts, allowances, rebates and credits are capable of having a direct or indirect bearing on prices and vice versa. (at p433)
A situation appropriate to the giving of a notice under s. 155(1) arises when the Commission, its chairman or deputy chairman has reason to believe that a person is capable of furnishing information, producing documents or giving evidence relating to a matter that constitutes or may constitute a contravention of the Act. The relevant belief may be, and presumably normally would be, general in nature. As to particular items of information or particular documents, there may be a belief that possibly or even probably a person is capable of furnishing that information or producing those documents but not a belief that he is actually capable of doing so. But if it appears that the chairman has reason to believe that the person to whom the notice is given is capable of furnishing information relating to a matter that constitutes or may constitute a contravention of the Act, he may by the notice require that person to furnish "any such information" within the meaning of that expression in s. 155(1)(a) of the Act. (at p434)
It may be argued that just as a notice under s. 155(1) derives its prima facie general validity from the chairman's assertion that he has reason to believe that the person to whom it is given is capable of furnishing relevant information, and that validity persists unless there is satisfactory evidence challenging the existence of the relevant reason to believe, so the demand for particular information made in the notice given under the section derives, from the notice itself, a prima facie validity as a demand made for information with respect to which there is reason to believe that it does relate to a relevant matter, and that validity persists unless and until it is displaced by satisfactory evidence. This view does not rest upon statements in s. 155(1) enacting it in express terms, but could gain support from the principle applicable, in relation to the prima facie validity of the chairman's statement in a notice that he has the specified reason to believe. Concerning that prima facie validity the majority of the Full Court said in the reasons for judgment in the case stated herein, Melbourne Home of Ford Pty. Ltd. v. Trade Practices Commission and Bannerman, per Franki and Northrop JJ.: "Since the requirement of 'reason to believe' is a condition precedent to the exercise of the power conferred by s. 155(1) of the Act, a court may in an appropriate case, investigate whether the condition has been satisfied and whether the Commission, chairman or deputy chairman has acted in good faith, but it seems that the grounds upon which reason to believe is founded need not be disclosed except possibly in so far as there is a basis for the contention that the power has been exercised improperly" (1979) 36 FLR, at p 479 . And per Smithers J.: "Accordingly in a proceeding pursuant to s. 163A(1), certainly in the absence of satisfactory evidence that the chairman did not have the relevant reason to believe, the applicants are faced with the prima facie validity of the notice" (1979) 36 FLR, at p 460 . (at p435)
It appears to me, however, that on its proper construction the section authorizes the chairman, when he has reason to believe that a person is capable of furnishing information or producing documents relating to a matter that constitutes or may constitute a contravention of the Act, to demand only such information or documents which do in fact relate to such matter. Information demanded does not acquire that quality of relatedness merely because it is demanded in a notice the authority for which is that the chairman has reason to believe that the person to whom it is given is capable of furnishing information that relates to the relevant matter. "Any such information" referred to in sub-s. (1) (a) of s. 155 and "any such documents" referred to in sub-s. (7)(b) thereof are such items of information and such documents as relate to the relevant matter, not such information and such documents as the chairman may have reason to believe the person to whom the notice is given is capable of furnishing or producing. (at p435)
Clearly enough, it is a condition of the chairman's right to give notice under s. 155(1) of the Act that he has reason to believe that the person to whom it is given is capable of furnishing information or producing some document relating to the relevant matter. It is clear also that the chairman may seek and obtain by the notice all the information relating to the relevant matter which the person is capable of furnishing. The extent of certain of that information and the precise nature thereof may well be unknown to the chairman but whatever the extent and nature of the information which it is within the capability of the recipient to furnish, it is that information, and all of it, which the chairman may require to be furnished. Thus are defined both the limit and the quantum of the information which may be required to be furnished. This follows from a literal construction of s. 155. It is appropriate in the case of a statute conferring powers upon a public official to compel persons to furnish information to him concerning the business affairs of themselves or others thought to be contrary to law. It reflects the very firm intention of Parliament that the procedure authorized by the section shall be effective and at the same time it does not expose the citizen to unlimited official demands. The determination of Parliament that the section shall really be effective to enable the chairman to obtain all information relevant to a contravention or possible contravention is exemplified by its abrogation of the privilege against self-incrimination (see s. 155(7)). (at p435)

So far as the construction adopted relates to the limit of what may be required by the chairman, it appears to be in accordance with the approach adopted by the court in Federal Commissioner of Taxation v. Australia and New Zealand Banking Group Ltd. (Smorgon's case) (1979) 53 ALJR 336 in relation to the validity of notices given by the Commissioner requiring production of documents pursuant to s. 264(1) of the Income Tax Assessment Act 1936. That section is very different from s. 155 but is of the same class of statutory provision. (at p436)
Accordingly, when an occasion in which the chairman may operate the procedure authorized by s. 155 has arisen, he may by notice require the person to whom a notice thereunder is given to furnish all the information which he is capable of furnishing which in fact relates to a matter which does or may constitute a contravention of the Act. To give a notice in these general terms would leave the identification of the information to be furnished to the judgment of the recipient of the notice (see Smorgon's case per Mason J. (1979) 53 ALJR, at p 345 ). But a notice specifying particular information or documents is obviously likely to be more efficacious for achieving the purpose of s. 155. It is quite in accordance with the terms of the section that the chairman should descend to particulars and specify the information and documents he requires. Thereby the limits of the demand are defined. The protection for the recipient of the notice against oppressive demands is that the only information or documents which the chairman is entitled to require is such information or documents as does or do relate to a matter that does or may constitute a contravention of the Act. If in operating the procedure the chairman descends to particulars he will or may particularize in the dark. No doubt he will specify information or documents which he suspects, not necessarily believes, the person to be capable of furnishing which fall within the general capability to furnish relevant information which is the subject of his belief. If the item of information specified relates to a matter that does or may constitute a contravention, then the demand on the person concerned to furnish it is valid, and, subject to his capability to furnish it, he must comply. (at p436)
To make the section effective Parliament has given to the chairman authority over information which relates not only to matters which do, but also which may, constitute a contravention of the Act. Should the person against whom a demand was made challenge the relevance of any specified information demanded, and consider that it does not relate to any such matter and acts on that view, the lawfulness of his conduct will depend on the answer to the question of fact - does the information demanded relate to a matter which does or may constitute a contravention of the Act? Parliament enables him to raise the matter in an application under s. 163A(1)(a) of the Act. (at p436)
It was submitted by Mr. Goldberg that when a declaration is sought under s. 163A(1)(a) in relation to the validity of the notice given to a person under s.155, that being an "act or thing done . . . under this Act", the validity of the requirement in such a notice to furnish particular information depends upon it being apparent from the terms of the notice that such information does in fact relate to a relevant matter. I accept this submission as sound. It is in accordance with general principles of administrative law. Also it appears to me to follow from what was decided by the High Court in Smorgon's case. Under s. 264(1) of the Income Tax Assessment Act the Commissioner may by notice require any person, whether a taxpayer or not, (a) to furnish him with such information as he may require; and (b) to attend and give evidence concerning his or any other person's income or assessment and may require him to produce all books, documents and other papers whatever in his custody or under his control relating thereto. (at p437)
In respect of a notice given under s.264(1)(b) it was said by Gibbs J.: "The next question that arises is whether the notices given to the Bank were sufficient in form. To be valid a notice to produce documents under s. 264(1)(b) must of necessity identify with sufficient clarity the documents which are required to be produced. However the notice must in my opinion go further: it must show the person to whom it is addressed that any document which he is required to produce is one whose production the Commissioner is entitled to require. Where a notice is addressed to a taxpayer who is required to produce documents which relate to his own income or assessment, the very description of the documents (for example, 'your books of account') may be enough to show that the notice is within the power conferred by the section. Where however the notice is addressed to one person, requiring him to produce the documents of another, the notice must show that those documents relate to the income or assessment of a particular person, who must be identified" (1979) 53 ALJR, at p 341 . (at p437)
It is to be observed that the contemplated contravention referred to in the notice is a contravention of the provisions of s. 45 of the Act. Accordingly, it may concern a provision in a contract, arrangement or understanding of an extremely complex kind. In order to interpret s. 45 one is required to go to s. 45A. Section 45A(1) provides that without limiting the generality of s. 45 a provision of a contract, arrangement or understanding shall be deemed, for the purposes of that section, to have the purpose, or to have or be likely to have the effect of substantially lessening competition if the provision has the purpose or has or is likely to have the effect of fixing, controlling or maintaining a price or discount, allowance, rebate or credit in relation to goods or services supplied by any bodies corporate which are parties to the agreement, arrangement or understanding in competition with each other. (at p437)
Accordingly information that relates to a matter that constitutes or may constitute a contravention of the Act embraces information about aspects of transactions which may indicate whether there has been such an arrangement or understanding. These are very wide terms in themselves (see Tradestock Pty. Ltd. v. T.N.T. (Management) Pty. Ltd. (No.2) (1978) 32 FLR 420 (. Assuming that there has been an arrangement or understanding the relevant information may disclose not only whether it has the effect of price fixing, but whether it is likely to have that effect or whether its purpose is to fix prices contrary to s. 45 (see s. 45(2)). Further by reason of s. 45 A (7) the area of relevant information extends to matters concerning the question whether a provision in a contract, arrangement or understanding has the purpose, or has or is likely to have the effect of fixing, controlling, or maintaining or providing for the fixing, controlling, or maintaining of such a price, discount, allowance, rebate or credit in relation to a resupply of goods in question by persons to whom the goods are or would be supplied by the parties to the contract, arrangement or understanding or the proposed parties to the proposed contract, arrangement or understanding or by any of them, or by any bodies corporate that are related to any of them. (at p438)
In his inquiries concerning such matters the chairman is necessarily concerned to ascertain whether there has been communication between the person to whom the notice is given and others or between various persons who might have been parties to the contemplated contravention or active in relation thereto. He is concerned to ascertain whether there was community of purpose between various parties amounting to conspiracy, in a non-criminal sense. This concept is introduced particularly by s. 75B which provides that references in Pt VI of the Act to a person involved in a contravention of the provisions of Pt IV of the Act shall be read as a reference to, inter alia, a person who has conspired with others to effect the contravention. The same concept is found in s. 80(i) of the Act. (at p438)
In relation to the nature of information the chairman may well require to seek, it is to be remembered that, from the point of view of enforcement of the Act, evidence of contravention of a direct kind is not normally available. Circumstantial evidence may be used to establish the kind of contract, arrangement or understanding in question, its implementation or the conspiracy to give effect thereto. As was said by Isaacs J. in R. v. Associated Northern Collieries (1911) 14 CLR 387 : "Community of purpose may be proved by independent facts, but it need not be. If the other defendant is shown to be committing other acts, tending to the same end, then though primarily each set of acts is attributable to the person whose acts they are, and to him alone, there may be such a concurrence of time, character, direction and result as naturally to lead to the inference that these separate acts were the outcome of pre-concert, or some mutual contemporaneous engagement, or that they were themselves the manifest of mutual consent to carry out a common purpose, thus forming as well as evidencing a combination to effect the one object towards which the separate acts are found to converge. . . . (at p439)
"Then I wish to say a few words with regard to the manner in which I propose to regard these separate acts as bearing on the common purpose. The Judges in advising the House of Lords in Mulcahy v. The Queen say: 'And so far as proof goes, conspiracy, as Grose J. said in R. v. Bussac (sic) (R. v. Brisac), is generally "a matter of inference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them" (1803) 4 East 164, at p 171; 102 ER 792 at p 795 . The number and the compact give weight, and cause danger' (1868) LR 3 HL 306 at p 317 " (1911) 14 CLR, at pp 400-401 . See also Trafodi v. The Queen (1961) 104 CLR 1 , C-O-Two Fire Equipment Co.v. United States (1952) 197 F(2d) 489 and Interstate Circuit Inc. v. United States (1938) 306 US 208, at p 221 . (at p439)
Mr. Tadgell submitted for the chairman that the wide range of activities which may relate to a matter that constitutes or might constitute a contravention of the provisions under s. 45 of the Act is usefully described by Professor Areeda in Antitrust Analysis (2nd ed.), par. 320 (b), namely: "As we have seen, competitors might agree on minimum or maximum prices, buying or selling prices, the limitation of their own output, or the removal from the market of 'excess' supply in the hands of others. Competitors have also been known to agree on formulae for the allocation of business or the determination of price. They might agree to rotate bids (where they take turns submitting 'low' bids), to circulate price lists, to charge published prices or at least to begin bargaining from list prices, to fix trade-in allowances or discounts or mark-ups or to set the price spread between premium and lesser products." (at p439)
It is therefore clear that the concept of information which relates to a matter which constitutes or may constitute a contravention of the Act embraces a wide range of information. It would comprise information concerning conduct which was committed by corporations or persons which might throw light on the question whether or not conduct constituting a contravention had occurred. It would seem that information of any kind which concerns the conduct of persons in activities which touch and concern trade and commerce in the area of contemplated arrangements or understandings designed to provide proscribed common price policies, or to commit other proscribed trading conduct in relation to prices which might have been made or arrived at, is fairly within the description of information relating to a matter that constitutes or may constitute a contravention of the Act. It is a consequence of these considerations that requirements directed to the commercial conduct of persons in a relevant commercial area are "any such information" within the meaning of s. 155(1)(a) of the Act. From a practical point of view, so long as the requirement for information concerns conduct in relation to prices charged or to be charged for Ford spare parts in what one may call the domain of corporate trade and commerce, that which is required will normally be seen to be "any such information". In these applications the applicants are entitled to ask the court to look at the information sought to determine whether what is demanded is "any such information" or "any such documents" within the meaning of s. 155(1)(a) and (b). Accordingly I have considered the requirements of the notice with a view to forming a judgment as to whether the information sought satisfies the test referred to above. I am satisfied that the information and documents sought all relate to an area of corporate activity in trade and commerce carried on by the applicant and other corporations in competition with each other, and that the conduct relates to contemplated arrangements or understandings having the purpose of or being likely to have the effect of fixing, controlling or maintaining the prices of Ford spare parts supplied by those corporations to motor vehicle body repairers in Melbourne, or to the giving effect to any such arrangements or understandings and that such conduct constitutes or may constitute a contravention of the Act. (at p440)
In the extensive requirements of the notice it is not possible to point to any which seek information or production of documents other than such as would, if supplied, relate to a matter which did or might constitute a contravention of the Act. The inquiries seek information concerning meetings of relevant parties or their representatives at which prices charged or to be charged for Ford spare parts by relevant parties were discussed, the content of the discussions, the relationship between the prices charged for such parts by the relevant parties or between those prices and prices recommended by the Ford Motor Company Ltd. and the communications between relevant parties on the subject of prices charged or to be charged for Ford spare parts and similar matters. All such information would relate to matters which constitute or might constitute a contravention of the Act. It would when furnished either provide evidence of such contraventions or assist the chairman to decide whether a contravention had occurred. Accordingly, in my opinion, the information sought was "any such information" within the meaning of s. 155(1) of the Act. This is true even in relation to "questions" 4 (e) and 6 (c)(v) of the first schedule and the documents referred to in par. 4 (e) of the second schedule of the notice although for a particular reason mentioned below the notice lacks validity in respect thereof.
IDENTIFICATION IN THE NOTICE OF THE RELEVANT "MATTER" (at p441)
As indicated above the notice must contain sufficient information to enable the recipient to perceive that the obligations cast upon him by the notice are obligations which may properly be cast upon him according to law. In the present case he should be able to perceive that the information and documents which he is required to furnish and produce do relate to a matter which constitutes or may constitute a contravention of the Act. The notice does inform him that the contemplated contravention is that the recipient has given effect to a provision of an arrangement or understanding between the recipient and other corporations which has the purpose or is likely to have the effect of fixing, controlling or maintaining the prices for Ford spare parts supplied by those corporations in competition with each other to motor vehicle body repairers in Melbourne. It appears to me that the only possible defect in this notice is that the parties to the arrangement or understanding other than the recipient of the notice are not identified. I do not regard this as an invalidating defect. The subject matter of the arrangement or understanding is comprehensively stated. The notice informs the recipient that the "matter" is conduct in his business of supplying Ford spare parts to motor vehicle repairers in Melbourne carried on by the recipient in competition with other corporations who carried on the same business and concerns an arrangement or understanding or conduct that may constitute an arrangement or understanding contrary to the provisions of the Act for the fixing, controlling or maintenance of prices for such spare parts. That is enough to show the recipient that the information which he is required to furnish and the documents which he is required to produce are information and documents the furnishing of which the chairman "is entitled to require": see per Gibbs J. in Smorgon's case (1979) 53 ALJR, at p 341 . The further identification of the other corporations the parties to the contemplated contravention is unnecessary for the purpose of showing to the recipient the connexion between the information and documents required and the relevant matter. Of course although in the present case it would appear that the chairman has a knowledge of the identity of the corporations probably or possibly parties to the contravention or possible contravention, that would not always be the case. (at p441)
(His Honour then dealt with objections to various particular questions.)
OPPRESSION (at p441)
The requirements of question 5 and 6 of the second schedule were the subject of objection on grounds of oppressiveness. As to this, the remarks of Bowen C.J. in Riley McKay Pty. Ltd. v. Bannerman are in point: "It is not, I think, a good ground of objection to a notice under s. 155 that it is burdensome or oppressive. It is clear that when such a notice is given, the answering of it may involve the recipient in considerable work and expense. This, in itself, may constitute a kind of penalty whether or not there is ultimately found to have been a contravention. The legislation assumes that the public interest necessitates this. No doubt in practice, the commission will administer the Act in such a way as not to impose upon a person or company a burden completely disproportionate to the value to the commission of the information sought" (1977) 31 FLR, at p 136 . In cases where this class of objection is taken the real question is generally whether the demand is so unreasonable that the correct view is that it exceeds the purposes of the grant of authority pursuant to which it is made. Having regard to the nature of the contemplated contravention of the Act with respect to which the notice in question in this case was given, no such case could be made. That contravention involved complicated commercial dealings of multiple parties over a wide range of products during a substantial period of time and to which the documents production of which is sought although multitudinous, are relevant. (at p442)
With respect to this subject the judgment of Ackner J. in Clinch v. Inland Revenue Commissioners (1974) QB 76 is instructive. In that case the Commissioners had issued a notice under s. 481 of the Income and Corporation Taxes Act, 1970 (U.K.), to the plaintiff the manager of a subsidiary of a bank situated in Bermuda which was described as a tax haven. Section 481(1) states: "The board or, for the purpose of charging tax at the standard rate, an inspector may by notice in writing require any person to furnish them within such time as they may direct (not being less than 28 days) with such particulars as they think necessary for the purposes of this chapter." The notice sought particulars of various transactions in which the plaintiff had acted for or advised United Kingdom clients. The plaintiff sought declarations that the notice was bad on two grounds. The first was that the notice was generally ultra vires. This may be passed by as its resolution depended to some extent on the phrase "such particulars as they may think necessary for the purposes of this chapter", which is significantly different to the legislative language before me. The second ground was that the Commissioners had exercised their discretion unreasonably, in particular that the requirements of the notice were inordinately burdensome or oppressive. The plaintiff asserted that "it would take some five months working full time, with the assistance of a secretary also working full time, for him to comply with the notice". Ackner J. rejected both grounds. His Honour said: "I am accordingly satisfied that the plaintiff does not have to go to the extent of establishing bad faith against the commissioners. The commissioners may have had regard to quite irrelevant considerations or may have acted quite unreasonably in the sense defined by Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 KB 223 but yet be entirely innocent of dishonesty or malice" (1974) QB, at p 91 . He continued: "The notice does not require him to carry out any researches in order to obtain knowledge which he never had. He must examine the records maintained by him or maintained by the London bank and he must seek to refresh his knowledge from any sources which he considers are capable of providing such refreshment. . . . (at p443)

"I would accept in principle that a notice could well be inordinately burdensome or oppressive and therefore invalid if it had the consequences described by Sir Elwyn. But this is not the case here. The interpretation clause of the notice removes many problems that otherwise might have arisen. Although it may well be necessary for the plaintiff to refer, on occasions, to his legal advisers or to his accountants for advice, this is by no means an unusual situation where information is sought by the revenue" (1974) QB, at pp 92, 94 . And his Honour added: "Accordingly, if the particulars sought went substantially beyond that which was required for this purpose, so that they could be properly described as unduly oppressive or burdensome, I have no doubt that a court would be entitled to intervene, and declare that notice invalid. One of the vital functions of the courts is to protect the individual from any abuse of power by the executive, a function which nowadays grows more and more important as governmental interference increases" (1974) QB, at p 92 . Similar views were expressed by Goulding J. in Wilover Nominees Ltd. v. Inland Revenue Commissioners (1974) 1 WLR 1342 . (at p443)
The case before me has been presented with no evidence to suggest that the second respondent has not exercized his powers for the purposes for which they were vested. If such evidence were available the matter would of course be different.
INFORMATION OBTAINED IN CONFIDENCE (at p443)
An additional matter raised by the applicants was that certain of the information required by the chairman was or might be information received by the applicants in confidence. There is no evidence before me that any of the information sought was received by the applicants in any kind of confidence. Mr. Goldberg submitted that by virtue of s. 4M(b) of the Trade Practices Act 1974 a person in the position of the applicants was entitled to refrain from furnishing information demanded where the furnishing thereof would constitute a breach of confidence. That section is in the following terms:

"4M. This Act does not affect the operation of -

(a) the law relating to restraint of trade in so far as that law is capable of operating concurrently with this Act; or

(b) the law relating to breaches of confidence, but nothing in the law referred to in paragraph (a) or (b) affects the

interpretation of this Act." (at p444)

It does not appear to me that the intention of Parliament embodied in this section was to modify in any way the duties imposed upon persons by express and implied terms of the provisions of the Act which, for the purposes of the Act impose such duties. I did not understand Mr. Goldberg to submit a response of any force to the question posed in argument: "It would be very curious that you could make an agreement contrary to the Act and then say, 'this is confidential. I will tell you what my prices are confidentially. You tell me what your prices are confidentially. I will write you a confidential letter'." The remarks of Diplock L.J. in Parry-Jones v. Law Society are in point: "What we are concerned with here is the contractual duty of confidence, generally implied though sometimes expressed, between a solicitor and client. Such a duty exists not only between solicitor and client, but, for example, between banker and customer, doctor and patient and accontant and client. Such a duty of confidence is subject to, and overriden by, the duty of any party to that contract to comply with the law of the land. If it is the duty of such a party to a contract, whether at common law or under statute, to disclose in defined circumstances confidential information, then he must do so, and any express contract to the contrary would be illegal and void. For example, in the case of banker and customer, the duty of confidence is subject to the overriding duty of the banker at common law to disclose and answer questions as to his customer's affairs when he is asked to give evidence on them in the witness box in a court of law, I think that similar provisions as to disclosure apply to doctors under the National Health Act" (1969) 1 Ch 1, at p 9 . Compare Sankey v. Whitlam in particular the remarks of Gibbs A.C.J. (1978) 53 ALJR 11 .
CONCLUSION (at p444)
Accordingly a declaration should be made that the operation of s. 155(1) does not require the applicants to furnish the information sought in pars. 4(e) and 6(c) of the first schedule to the chairman's notice dated 28th July, 1978, or to produce the documents referred to in 4(e) of the second schedule to the said notice but that otherwise the applications be dismissed. (at p444)
(His Honour proceeded to deal with the question of costs.) (at p444)

ORDER

Orders and declarations accordingly.

[1979] FCA 104

12 OCTOBER 1979