Mildura Fruit Juices Pty Ltd v Bannerman, Ronald Moore

[1983] FCA 97

Re: MILDURA FRUIT JUICES PTY. LTD.
And: RONALD MOORE BANNERMAN
And: TRADE PRACTICES COMMISSION (1983) 67 FLR 1
No. VG 169 of 1982
Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Franki J.(1)

CATCHWORDS

Trade Practices - Notice pursuant to s.155 of the Trade Practices Act 1974 - Constitutional validity of s.55 of the Act - Whether "matters" in notice properly and adequately identified - Whether notice valid.

Trade Practices Act 1974, ss.55, 155.

Trade Practices - Notice pursuant to s. 155 of Trade Practices Act 1974 - Validity of s. 55 of Trade Practices Act - Validity of notice - Whether matters in notice properly and adequately identified - Trade Practices Act 1974 (Cth), ss 52, 53(a), 55, 155.

HEADNOTE

The applicant applied under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for an order of review of a decision by the first respondent to serve a notice under s. 155 of the Trade Practices Act 1974 on the applicant. The notice, the terms of which appear in the judgment, sought the furnishing of information and production of documents relating to matters that constituted or might constitute contraventions by producers of orange juice products in Australia of ss 52(1), 53(a) and 55 of the Trade Practices Act 1974.

Held: (1) The applicant had not shown that s. 55 of the Trade Practices Act 1974 was beyond the constitutional power of the Commonwealth, as it had not been shown that it did not give effect to the Convention upon which it was based.

(2) (a) The identification of the relevant matter for the purposes of s. 155 of the Trade Practices Act was not to be approached in an over-technical or hypercritical way. It was sufficient that the matter be identified so that it was shown that the person giving the notice was entitled to require the information sought to be furnished and the documents sought to be produced. (b) That part of the notice which purported to identify the matters constituting the contraventions or possible contraventions of s. 52(1) of the Trade Practices Act 1974 was not sufficiently identified.

Pyneboard Pty Ltd v. Trade Practices Commission (1982) 57 FLR 368; Melbourne Home of Ford Pty Ltd v. Trade Practices Commission (1979) 36 FLR 450; Melbourne Home of Ford Pty Ltd v. Trade Practices Commission (No. 2) (1979) 40 FLR 428; Melbourne Home of Ford Pty Ltd v. Trade Practices Commission (No. 3) (1980) 47 FLR 163; Dunlop Olympic Pty Ltd v. Trade Practices Commission (1981) ATPR 40-238, applied.

(3) The word "may" in s. 155(1) of the Trade Practices Act 1974 was not to be limited to future acts.

W.A. Pines Pty Ltd v. Bannerman (1980) 41 FLR 175; Davenport v. Trade Practices Commission (1983) 5 TPR 285, followed.

(4) The person issuing a notice under s. 155 of the Trade Practices Act 1974 need not believe that the person to whom the notice was issued was capable of furnishing the precise information requested as opposed to some relevant information.

Davenport v. Trade Practices Commission (1983) 5 TPR 285, followed.

HEARING

1983, May 19-20. #DATE 20:5:1983

APPLICATION.

The applicant applied under the Administrative Decisions (Judicial Review) Act 1977 for an order of review of a decision of the first respondent to serve a notice under s. 155 of the Trade Practices Act 1974 upon the applicant.

F. H. Callaway, for the applicant.

G. Griffith Q.C. and R. A. Sundberg, for the respondents.

Cur. adv. vult.

Solicitors for the applicant: Weigall & Crowther.

Solicitor for the respondents: B. J. O'Donovan, Commonwealth Crown Solicitor.

T.J. GINNANE

ORDER

1. Declare that the applicant is not obliged to comply with the notice under s.155 of the Trade Practices Act 1974 dated 12th October 1982 received by it from the first respondent.

2. Costs are reserved for submissions to be made at a later date.

JUDGE1

This is an application under the Administrative Decisions (Judicial Review) Act, 1977 for a review of a decision by Mr Ronald Moore Bannerman, the Chairman of the Trade Practices Commission ("the Commission") to serve a notice under s.155 of the Trade Practices Act, 1974 ("the Act") upon the applicant, Mildura Fruit Juices Pty. Ltd. The applicant seeks orders pursuant to s.16 of the Administrative Decisions (Judicial Review) Act, inter alia, declaring that the applicant is not obliged to comply with the notice. The notice, together with a letter signed by Mr P.J. Cronin, Assistant Commissioner, was received, on or about 14 October 1982, by the applicant. The letter referred to a question having been asked in Parliament and to the fact that "the Minister then responsible for the Trade Practices Act" had asked the Commission "to investigate whether misleading and deceptive conduct is occurring in the fruit juice industry". The letter continued:

"Preliminary information available from government and industry sources suggests that dilution of orange juice products is occurring on an industry wide basis. I am concerned that if this is so, producers of orange juice products, including your company, may have contravened sections 52(1), 53(a) and 55 of the Act."

The notice followed what seems to be the general practice for such notices. It set out that it was given pursuant to s.155 of the Trade Practices Act, 1974 and that the Chairman "having reason to believe" that the applicant "is capable of furnishing information and producing documents relating to matters that constitute, or may constitute, contraventions (of the Act) by producers of orange juice products". The contraventions of the Act referred to were dealt with and the applicant was required to supply the information specified in the first schedule to the notice and produce the documents specified in the second schedule.

I set out that part of the notice which describes the alleged contraventions:
"Pursuant to section 155 of the Trade Practices Act 1974 (hereinafter referred to as 'the Act'), I, RONALD MOORE BANNERMAN, Chairman of the Trade Practices Commission, having reason to believe that Mildura Fruit Juices Pty Ltd (hereinafter referred to as 'the company') is capable of furnishing information and producing documents relating to matters that constitute, or may constitute, contraventions by producers of orange juice products in Australia, of -

i. sub-section 52(1) of the Act, namely that companies supplying orange juice products in trade or commerce have engaged or are engaging in conduct that is misleading or deceptive or is likely to mislead or deceive, namely, representing as orange juice and orange juice concentrate, products which do not consist wholly of juice obtained from oranges; and/or representing as orange juice drink and orange juice drink concentrate, products containing a lesser percentage of juice obtained from oranges than that indicated on containers of the products; or

ii. sub-section 53(a) of the Act, namely that companies producing orange juice products, in trade or commerce, in connection with the supply of orange juice, orange juice concentrate, orange juice drink and orange juice drink concentrate, have falsely represented or are falsely representing the products as being of a particular standard, quality, grade or composition; or

iii. section 55 of the Act, namely that producers of orange juice products in trade or commerce have engaged or are engaging in conduct that is liable to mislead the public as to the nature, the manufacturing process, the characteristics or the suitability for their purposes, or the quantity, of products labelled and described as orange juice, orange juice concentrate, orange juice drink and orange juice drink concentrate."

The applicant's solicitors on 5 November 1982 made the following enquiry by telex to the Chairman:
"We refer to your notice under s.155 of the Trade Practices Act 1974 dated 12th October 1982 and to previous discussions and correspondence with Mr P.J. Cronin.

Paragraph 1 of the introductory part of the notice sets out two matters which it is said constitute, or may constitute, a contravention of s.52(1) of the Act.

Would you please confirm that it is the same two matters which it is said constitute, or may constitute, a contravention of s.53(a) as mentioned in paragraph ii and a contravention of s.55 as mentioned in paragraph iii.

In other words, are paragraphs ii and iii each to be construed as if they concluded with the words:

'Namely, representing as orange juice and orange juice concentrate products which do not consist wholly of juice obtained from oranges: and/or representing as orange juice drink and orange juice drink concentrate, products containing a lesser percentage of juice obtained from oranges than that indicated on containers of the products?'"

So far as is relevant the Chairman made the following reply by telex on 8 November 1982:
"Your telex 240 of 5.11.82 refers. The possible contraventions referred to in paragraphs (i), (ii) and (iii) of the notice under section 155 of the Act addressed to your client and dated 12 October 1982, derive from my belief that the results of enquiries at government and industry level suggests that dilution of orange juice products may be occurring on an industry-wide basis. The background to the issue of the notice under section 155 is also referred to in Mr Cronin's letter of 12 October 1982 accompanying the notice."

The applicant did not attack the manner in which the demand for information was framed in the first schedule or the way the documents were described in the second schedule.

Section 155(1), so far as is relevant to this application, reads:
"Where . . . the Chairman . . . has reason to believe that a person is capable of furnishing information, producing documents . . . 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 . . . any such information;

(b) to produce to the Commission . . . any such documents;

. . . ".

The applicant attacks the validity of the notice on five grounds:

(1) Section 55 of the Act is not within the constitutional power of the Commonwealth.

(2) That part of the notice which purports to identify the matters constituting the contraventions or possible contraventions was ambiguous, inadequate and unintelligible.

(3) The word "may" in s.155(1) looked only to the future.

(4) The Chairman based his decision to issue the notice upon the existence of particular facts which did not exist.

(5) The person issuing the notice must believe that the person to whom the notice was issued was capable of furnishing the precise information requested.

Notices as required by s.78B of the Judiciary Act 1903 were served on the Attorneys-General for the Commonwealth and for the State of Victoria respectively. The Attorney-General for the State of Victoria did not appear but senior counsel, who appeared for the respondents, announced his appearance also for the Attorney-General of the Commonwealth.

Apart from the text of conventions and certain regulations to which I will refer later, the only evidence in this application was in affidavits filed by a partner in the firm of solicitors acting for the applicant and a Mr Kurt Zentner, a public analyst, consulting chemist and microbiologist.

The respondents had given notice of an intention to contend that the decision of the Chairman was not a decision to which the Administrative Decisions (Judicial Review) Act applied but before me it was conceded that this decision was one in respect of which an application under that Act could be made to this Court.

I pass now to consider the five grounds of attack upon the notice.
Ground (1)

This ground involves a consideration of the power of the Australian Parliament to enact s.55 of the Act which was mentioned but not considered in Queen v. The Judges of the Australian Industrial Court; Ex parte C.L.M. Holdings Pty. Ltd. (1977) 136 C.L.R. 235. Section 2(2) of the Act of 1974 provided:
"Section 55 shall come into operation on a date to be fixed by Proclamation, being a date not earlier than the date on which the Paris Convention for the Protection of Industrial Property revised as at Stockholm on 14 July 1967 enters into force for Australia."
This section was repealed when the Act was amended in 1977. It was common ground that Australia had ratified the Stockholm revision when s.55 was proclaimed to come into force on 27 September 1975. Section 55 provides:
"A person shall not, in trade or commerce, engage in conduct that is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose or the quantity of any goods."

Senior counsel for the respondents relied mainly on the provisions of s.51(xxix) of the Commonwealth of Australia Constitution Act giving the Commonwealth Parliament power to make laws for the peace, order and good government of the Commonwealth with respect to "External affairs". The respondents also argued that the legislation could be supported, at least in relation to a trading or financial corporation, under s.51(i) and (xx) of the Constitution providing respectively powers to make laws for the peace, order and good government of the Commonwealth in respect of "Trade and commerce with other countries, and among the States" and "Foreign corporations, and trade or financial corporations formed within the limits of the Commonwealth".

The applicant and the respondents each tendered documents which purported to set out the text of the Paris Convention in both its French and English form. The applicant tendered a copy of a document dated 1977 purporting to be produced by the Secretariat of the United Nations (Treaty Series Volume 828, pp.305-367) and to set out the terms of the Convention as "Done at Stockholm on 14 July 1967". The respondents tendered a copy of a different document, dated 1972, which also purported to be a document in the "United Nations-Treaty Series" and to set out the terms of the Convention "Done at Lisbon on 31 October 1958". Since s.2(2) of the Act, as it stood before the amendment in 1977, referred to the Convention "revised at Stockholm on 14 July 1967" I propose to have regard to the document tendered by the applicant.

There is no doubt under Article 29 the French text prevails. Article 29(1) reads:
"(1) (a) This Act shall be signed in a single copy in the French language and shall be deposited with the Government of Sweden.

(b) Official texts shall be established by the Director General, after consultation with the interested Governments, in the English, German, Italian, Portuguese, Russian and Spanish languages, and such other languages as the Assembly may designate.

(c) In case of differences of opinion on the interpretation of the various texts, the French text shall prevail."

It appears that the Director General is the Director General of the World Intellectual Property Organization. The English text tendered by the applicant bears the notation "Translation supplied by the United International Bureaux for the Protection of Intellectual Property". I was asked to work from the original French text where there was any doubt concerning translations. Senior counsel for the respondents cast doubt on certain parts of the translation in the English text. I have very considerable doubt about the proper limits of the duty and powers of a Judge when faced with a submission that he has a duty himself to decide, without any expert evidence, whether a translation of certain words from a foreign language is correct. However, in this case I think that it is unnecessary for me to embark upon a consideration of any possible differences between the proper meanings of the English and French texts.

It was conceded by the applicant that the Paris Convention for the Protection of Industrial Property was a Convention of a type proper to be implemented under the external affairs power and the issue presented to me was whether or not s.55 of the Act gave effect to any provisions in the Convention in a way which was within the Commonwealth Parliament's legislative power.

I consider, in a case where I am requested to interpret the provisions of a Treaty of this nature, that I am entitled to look at works of acknowledged reputation. Such a work is that of Stephen P. Ladas Patents, Trademarks, and Related Rights, National and International Protection, Harvard University Press, 1975. I set out the English translation of Articles 1(2)(3) and 10bis of the Convention in the document tendered by the applicant which corresponds with that in Ladas' work at pp.1919, 1923 and 1924.

Article 1

"(1) . . . .

(2) The protection of industrial property has as its object patents, utility models, industrial designs, trademarks, service marks, trade names, indications of source or appellations of origin and the repression of unfair competition.

(3) Industrial property shall be understood in the broadest sense and shall apply not only to industry and commerce proper, but likewise to agricultural and extractive industries and to all manufactured or natural products, for example, wines, grain, tobacco leaf, fruit, cattle, minerals, mineral waters, beer, flowers and flour."

Article 10(bis)

"(1) The countries of the Union are bound to assure to nationals of such countries effective protection against unfair competition.

(2) Any action of competition contrary to honest practices in industrial or commercial matters constitutes an act of unfair competition.

(3) The following in particular shall be prohibited:

1. all acts of such a nature as to create confusion by any means whatever with the establishment, the goods, or the industrial or commercial activities, of a competitor;

1. false allegations in the course of trade of such a nature as to discredit the establishment, the goods, or the industrial or commercial activities, of a competitor;

1. indications or allegations the use of which in the course of trade is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose, or the quantity, of the goods."

Counsel for the applicant submitted that Article 10bis (3)3. dealt only with indications or allegations made in a competitive situation whereas s.55 of the Act was not limited to competitive situations. Counsel argued that the making of statements to the public concerning, for example, the characteristics of any goods would fall within s.55 whether or not those statements were made by persons having any competitive interest in promoting or otherwise dealing in the goods about which they made the statements. He argued that instances of a non-competitive situation would include circumstances where all competitors in a particular field join together in making a misleading statement. He drew attention to the fact that s.55 appears in Part V Division 1 of the Act entitled "Consumer Protection - Unfair Practices" and not in Part IV entitled "Restrictive Trade Practices". My attention was directed to the words "unfair competition" appearing in Articles 1(2) and 10bis(1) and (2) and to the words "of a competitor" in Article 10bis(3)1. and 2. none of which appears in 3. Some consideration was directed to the words "of the goods" at the end of Article 10bis (3)3. and whether the French text should not be more properly translated as "of goods". Ultimately no significance was placed on this issue because the applicant accepted that I should assume that the correct translation was "of goods". Unfair competition is considered by Ladas, supra, volume III, chapter 45, at pp.1675-1742, in a chapter entitled "The Repression of Acts of Unfair Competition". He traces the history of Article 10bis at Brussels in 1900 (p.1678), at Washington in 1911 (p.1678), at The Hague in 1925 (pp.1681-1683), at London in 1934 (pp.1683-1684) and at Lisbon in 1958 (pp.1684-1685) when paragraph (3)3. of Article 10bis was adopted and inserted. The learned author deals with this paragraph at pp.1685-1688, 1705-1706 and in particular at pp.1733-1735. At p.1733 he says in relation to Article 10bis (3)3:

"This is a category of acts which are distinct from the other two, in that they are directly concerned with the deception of the public rather than the protection of the goodwill of competitors. It is true that a trader who misleads the public by allegations concerning the nature or characteristics of his goods does so in order to attract customers to his goods, and he thereby may divert the clientele of his competitors for the same kind of goods. But the direct and immediate injury is to the purchasing public."
The other two paragraphs referred to are paras. 1 and 2 of 10bis (3).

At p.1735 he says:
"It would seem clear that paragraph 3(3) of article 10bis, as distinguished from paragraph 3(1) and 3(2), purports to protect primarily the public and only incidentally competing manufacturers or traders. If so, although the Convention does not specifically so direct, the national law of member countries should provide for direct action by consumers against acts violating this stipulation."

In general I agree with the approach taken by Ladas. Article 10bis (3)3. is limited to "indications or allegations the use of which in the course of trade is liable to mislead the public . . . ". Section 55 of the Act is limited to conduct "in trade or commerce . . . liable to mislead the public . . . ". No argument was addressed to me that this difference was a matter relevant to the question of validity and therefore I have not addressed myself to that question.

I consider that, as a matter of construction, Article 10bis (3)3. should be read without limitation by any other part of Article 10bis. I consider that the attack on the validity of s.55 fails since, in my opinion, the submissions that it does not give effect to the provisions of the convention have not been made out in this case. I have been referred to several cases and the views of several text writers upon the limits of the legislative powers of the Parliament of the Commonwealth with regard to "External Affairs". However, in view of my decision on Ground 2, I do not propose to deal further with Ground 1.
Ground (2)

The applicant mounted its attack under this ground upon the way in which the relevant contraventions were particularised in relation to s.52(1) and s.53(a) of the Act. The conduct alleged to be misleading or deceptive under s.52(1) was of two types, firstly "representing as orange juice and orange juice concentrate products which do not consist wholly of juice obtained from oranges" and secondly, "representing as orange juice drink and orange juice drink concentrate products containing a lesser percentage of juice obtained from oranges than that indicated on the containers of the products".

I turn to the law concerning the principles which have been established by the courts for determining the validity of notices under s.155.

I refer first to the decision of the Full Court of this Court in Pyneboard Pty. Ltd. v. Trade Practices Commission and Bannerman (1982) 39 A.L.R. 565. An appeal was heard by the High Court and judgment delivered on 18 March 1983 but that judgment does not affect the following principles which I consider can be extracted from the judgment of the Full Court in that case:
(1) "Matters" must be sufficiently identified in the notice to disclose to the recipient of the notice that the information he is required to furnish and the documents he is required to produce "relate" to one or more of the "matters" of a kind described in s.155(1).

(2) The question of whether the "notice discloses the necessary relatedness between the documents or information sought and the identified matters" is not to be approached in an over-technical or hypercritical way (p.571, 11.37-42).

(3) Lack of clarity (p.572, 11.8-13) in the terms of a particular requirement in the notice or the absence of the requisite relatedness between the identified "matters" and the information or documents sought can result in the particular requirements being, at least to the extent of such lack or absence, ultra vires s.155(1).

(4) The recipient of the notice is not required to reconstruct it (p.572) if it is partly invalid because the information required or the documents sought are not properly related to the "matters" identified. This is subject to a qualification that a "blue pencil" deletion of what is invalid is not practicable, or where, if such deletion is practicable, it would result in substantially different information being required or documents sought.

(5) A notice must be issued in good faith for the purpose for which the power to issue it is conferred and with regard to the effect that the exercise of the power will have upon those affected by it.

The judgment proceeds upon the basis that the relevant "matters" must be properly identified in the notice so that the recipient of the notice can see that the information required and the documents sought are properly required and sought as relating to the "matters" identified.

The requirement of a valid notice was also considered by a Full Court of this Court in Melbourne Home of Ford Pty. Ltd. v. Trade Practices Commission (1979) A.T.P.R. No. 40-107 at p.18,097. Franki and Northrop JJ. said:
"There is no warrant for giving the word 'matter' in sec.155(1) any technical meaning. The word is to be construed in its ordinary sense of an affair or thing."

In Melbourne Home of Ford Pty. Ltd. v. Trade Practices Commission (No. 2) (1979) 40 F.L.R. 428 at p.441 Smithers J. considered the requirement that the matter be identified in the notice. He said:
"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."

An appeal from this judgment of Smithers J. was taken to the Full Court of this Court and is reported in (1980) 31 A.L.R. 519. At pp.528-529 in a joint judgment Brennan, Keely and Fisher JJ. said:
"Ordinarily, when a question arises as to the validity of a s.155 notice issued under the first limb, three questions fall for consideration:-

(1) whether there is a 'matter that constitutes, or may constitute, a contravention';

(2) whether the Commission, the Chairman or the Deputy Chairman (as the case may be) has reason to believe that the person to whom the notice is given 'is capable of furnishing information, producing documents or giving evidence relating to' that matter; and

(3) whether the information required to be furnished, the documents required to be produced or the evidence required to be given (as the case may be) relates to that matter.

The first two of these questions are material to the existence of the power to issue a notice, the last to the manner of its exercise. Only the last question falls for determination in these proceedings, namely whether the Chairman has required each of the applicant companies to furnish information or produce documents other than information or documents relating to a matter that constitutes or may constitute a contravention, the 'matter' being, in each case, 'that the company has given effect to a provision of an arrangement or understanding between the company and other corporations which has the purpose, or has 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'.

If the information to be furnished or the documents to be produced in accordance with the notice respectively answer the description of 'information relating to' or 'documents relating to' the matter specified in the notice, the Chairman's requirement lies within the power which s.155 confers upon him."

Northrop J. in Dunlop Olympic Pty. Ltd. v. Trade Practices Commission (1981) 3 A.T.P.R. No. 40-238 at p.43,168 said:
"The power is investigative in nature, almost inquisitorial. The limiting factor is that the information required to be furnished or the documents to be produced must answer the description 'information relating to' or 'documents relating to' the matter specified in the notice."

It was submitted before me in relation to matters alleged to fall under s.52(1) that orange juice and orange juice concentrate need not consist wholly of juice obtained from oranges. The affidavit of Mr Zentner set out that commercial orange juice and orange juice drink marketed in Victoria was produced by reconstituting a concentrate derived from natural orange juice and that in the concentrating process there was some loss and breakdown of some of the ingredients of the juice. When the juice was reconstituted it was necessary to add these substances back otherwise the reconstituted product would be substantially dissimilar from the product before concentration. He also said:
"In my opinion it is not scientifically possible to say that a reconstituted product the ingredients of which are the same as those of juice derived from natural orange fruit and which has a brix measure between 8 and 13 and a brix acid ratio of between 8 and 30 is not orange juice."
Mr Zentner was not cross-examined and there was no other technical evidence before me.

In my opinion, the identification of the matter is not to be approached in an over-technical or hypercritical way. It is sufficient that the matter be identified so that it is shown that the person giving the notice is entitled to require the information sought to be furnished and the documents sought to be produced. In my opinion the notice sufficiently identifies the matter concerning the representation of orange juice and orange juice concentrate. I do not think that the argument of the applicant can succeed on this point.

With regard to the matters alleged to fall under s.52(1) so far as concerns orange juice drink and orange juice drink concentrate, counsel for the applicant referred to various Food and Drug Standards Regulations made pursuant to the provisions of various State Acts. As an example, he referred to Regulation 64 to be found in Statutory Rules No. 289 of 1970 for the State of Victoria where there was a definition of fruit juices, sweetened fruit juices and concentrated fruit juices. In this Regulation it was provided, inter alia, that fruit juices "shall not contain added water. They may contain preservative and added vitamins and minerals as prescribed in Regulation 14, and not more than four parts per centum of added sugar". He also referred to Regulation 70 introduced by Statutory Rules No. 361 of 1978 for the State of Victoria where "Fresh Fruit Drinks" were described as "drinks prepared for immediate consumption composed of freshly expressed fruit juice with or without sugar and potable water carbonated or not". This Regulation also provided in relation to "Fruit Juice Drinks" that orange juice drinks shall contain not less than 35% of fruit juice. He also pointed out that these regulations permitted the addition of a number of other named substances to be contained in "fruit juice drink". It is not necessary to consider the regulations in particular detail but it is sufficient to say basically similar regulations operate in the other States of the Commonwealth.

Apart from any regulation, statute or other relevant instrument, I do not see how it can be likely to mislead or deceive to describe as "orange juice drink" a product if that product is in fact orange juice drink. It would appear to me to be misleading or deceptive conduct to wrongly label the product as containing a greater percentage of orange juice than it in fact did contain but one would think that the question of whether it was orange juice drink would depend upon the amount of orange juice in the product and not what was on the label. That is to say it may be likely to mislead or deceive to call a product "orange juice drink" if it contains only 1 percent of orange juice but it would not be likely to mislead or deceive to call a product "orange juice drink" if it contained 99 percent of orange juice irrespective of what, if any, percentage of orange juice was shown on the label. The question of whether a product is labelled in a manner which wrongly states the percentage of orange juice in it does not appear to be related to the question of whether the product is properly represented as "orange juice drink". This depends on whether the product complies with any relevant statutory definition of "orange juice drink" or if there is no such definition whether in fact it falls within that description.

Senior counsel for the respondents did not rely upon s.63 of the Act, which deals with consumer product information standards, or upon any prescription of a standard or any state regulations. He submitted that they were quite irrelevant in these proceedings.

A representation that a product contains a greater percentage of orange juice than it in fact contains may well be a contravention of s.52(1) but the alleged contravention identified is unrelated to this question but depends on the truth of a representation that the product is orange juice drink. The attempt made by the applicant by telex on 5 November 1982 to get some clarification of the alleged contraventions did not receive a helpful reply. Much of the information required and many of the documents sought relate to orange juice drink and orange juice drink concentrate. I consider that this matter was not properly identified.

I pass now to the contraventions particularised in relation to s.53(a). These are very broadly defined but I am not aware of anything which requires contraventions to be identified in any particular detail if they are otherwise properly identified. The identification of the matter must be sufficient to satisfy the required standard. In relation to s.53(a) this is not a case where an alleged contravention has been wrongly identified so that nothing that could constitute an alleged contravention is identified. An alleged contravention had been identified although in very broad terms. I would not set the notice aside in this case if the only question was whether the contraventions alleged to fall within s.53(a) have been identified sufficiently.
Ground (3)

In support of this ground the applicant submitted that the word "may" in s.155(1) referred only to the future. I was referred to W.A. Pines Pty. Ltd. v. Bannerman (1980) 41 F.L.R. 175 and in particular, to the judgments of Brennan J. at pp.179-180 and Lockhart J. at pp.188-189. I was also referred to the unreported judgment of Northrop J. in Davenport v. T.P.C. delivered on 12 April 1983 at pp.12-19. Counsel accepted that the judgments of Brennan J. in W.A. Pines Pty. Ltd. v. Bannerman, and of Northrop J. in Davenport v. T.P.C. were contrary to his submission and he merely made the formal submission that these judgments should not be followed but he did not ask me to consider the question.
Ground (4)

The arguments that were advanced under this ground are included in those which were put under the second ground and they are that the "matter" referred to in the notice is based on non-existent facts. I do not need to deal separately with this ground.
Ground (5)

This ground was based on the fact that s.155 should be read so that the Chairman had no power to issue a notice under that section unless he had reason to believe that the person to whom the notice was issued was capable of furnishing the precise information requested and not merely some relevant information. As with the third ground, counsel for the applicant accepted that this submission was contrary to what had been decided by Northrop J. in Davenport v. T.P.C., supra, at pp. 5-11 and counsel merely made the formal submission that the view of Northrop J. was not correct. I accept his invitation to treat this as a formal submission only.

It was common ground that if I held that the notice was bad I should not attempt to consider whether any part of it was a valid exercise of power.

For the reasons I have stated in relation to the contravention alleged in relation to "orange juice drink and orange juice drink concentrate" I consider that the notice is invalid and I declare that the applicant is not obliged to comply with it.

I agreed to hear any submissions concerning costs and the parties may communicate with my associate to fix a date for those submissions to be made. I reserve the question of costs.