Pac-Rim Printing Pty Ltd v Australian Postal Corporation
[2000] FCA 475
•12 APRIL 2000
FEDERAL COURT OF AUSTRALIA
Pac-Rim Printing Pty Ltd v Australian Postal Corporation [2000] FCA 475
STATUTORY INTERPRETATION – meaning of “leaflet” within s 30(1)(c) of the Australian Postal Corporation Act 1989 (Cth).
WORDS AND PHRASES – “leaflet”
Australian Postal Corporation Act 1989 (Cth): s 29, s 30(1)(c)
PAC-RIM PRINTING PTY LTD v AUSTRALIAN POSTAL CORPORATION
V 295 of 1999
BLACK CJ, LEE and GOLDBERG JJ
12 APRIL 2000
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 295 of 1999 ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA
BETWEEN: PAC-RIM PRINTING PTY LTD
AppellantAND:
AUSTRALIAN POSTAL CORPORATION
Respondent
JUDGES: BLACK CJ, LEE and GOLDBERG JJ DATE OF ORDER: 12 APRIL 2000 WHERE MADE: MELBOURNE THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs of the appeal, including any reserved costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 295 of 1999 ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA
BETWEEN: PAC-RIM PRINTING PTY LTD
AppellantAND:
AUSTRALIAN POSTAL CORPORATION
Respondent
JUDGES: BLACK CJ, LEE and GOLDBERG JJ DATE OF ORDER: 12 APRIL 2000 WHERE MADE: MELBOURNE REASONS FOR JUDGMENT
This is an appeal against a decision of Justice Weinberg, granting, in respect of a particular article, an application by Australian Postal Corporation (“Australia Post”) for a declaration against Pac‑Rim Printing Pty Ltd that it had engaged in conduct in contravention of s 29 of the Australian Postal Corporation Act 1989 (Cth) (“the Act”) by carrying or delivering certain articles within Australia. An application by Australia Post for the same relief in respect of other articles was rejected by Weinberg J, it having been conceded by Australia Post at the trial that the carriage and delivery of those articles did not contravene the Act. His Honour also rejected Australia Post’s application for an injunction. Weinberg J’s reasons for judgment are reported: Australian Postal Corporation v Pac‑Rim Printing Pty Ltd (1999) 163 ALR 372.
The facts were not in dispute before his Honour and do not need to be set out again in these reasons. It is sufficient to note that the appellant carries on the business of printing, addressing and delivering advertising material, and that in or about May 1998 it collected and delivered articles to some 417,000 residents of Queensland for Golden Casket Lottery Corporation Ltd (“Golden Casket”).
The question for decision in this appeal can be simply stated: is the particular article in respect of which his Honour made the declaration appealed from (the “article”) a “leaflet” within the meaning of s 30(1)(c) of the Act so as to fall outside the scope of services expressly reserved to Australia Post under s 29? Weinberg J decided that it was not.
The article was tendered as part of Exhibit A2 at the trial and is described in his Honour’s reasons for judgment as “item (a)”. It comprises a sheet of A4 size paper, folded in half and printed on both sides. Some of the printing is in colour, including the Winners Circle playing card on the front, the photograph of “Iris” on the back and the signature of Fiona Campbell. The article is reproduced below:
The legislative provisions, their history and purpose
Sections 29 and 30 of the Act relevantly provide:
“29. (1) Subject to section 30, Australia Post has the exclusive right to carry letters within Australia, whether the letters originated within or outside Australia.
(2) The reservation of services to Australia Post under subsection (1) extends to:
(a)the collection, within Australia, of letters for delivery within Australia; and
(b) the delivery of letters within Australia.
30. (1) The reserved services do not include any of the following:
…
(c)the carriage of a newspaper, magazine, book, catalogue or leaflet, whether or not directed to a particular person or address and whether or not enclosed in any sort of cover;…”
In its original form, prior to 5 December 1994, s 30(1)(c) of the Act provided:
“30. (1) The services reserved to Australia Post do not include:
…
(c)the carriage of newspapers, magazines, books, catalogues and leaflets;
…”
The historical background to its subsequent amendment was considered in some detail by Weinberg J who noted that the amendment originally proposed by the Bill for the Australia Postal Corporation Amendment Act 1994 (Cth) proposed that s 30(1)(c) be amended to create a separate and more detailed exception for catalogues and leaflets, in the following terms.
“30. (1) The reserved services do not include any of the following:
…(c)the carriage of newspapers, magazines or books;
(ca)the carriage of identical catalogues or leaflets in relation to which one of the following conditions is satisfied:
(i)none of the catalogues or leaflets is enclosed in any sort of cover;
(ii)each of the catalogues or leaflets is enclosed in a cover (whether opaque or transparent), but none of them is directed, by writing on the cover, to a particular person or address;
(iii)each of the catalogues or leaflets is enclosed in a transparent cover and is directed, by writing on, or visible through, the cover, to a particular person or address.”
Concerns expressed by Senator Bourne on behalf of the Australian Democrats about the environmental effects of this proposed exception (which, it was thought, would permit the carriage of catalogues and leaflets in plastic but not paper packaging) led to a motion in the Senate that it be abandoned in favour of the current exception contained in s 30(1)(c), so as to exclude from the services reserved to Australia Post under s 29 “the carriage of a newspaper, magazine, book, catalogue or leaflet, whether or not directed to a particular person or address and whether or not enclosed in any sort of cover” (emphasis added). That motion was accepted, and s 30(1)(c) in its current form was subsequently enacted.
The Explanatory Memorandum for the Bill contains no discussion of s 30(1)(c) in its present form, the Memorandum having been prepared before the motion by Senator Bourne, at which time the Bill still proposed the addition of a new s 30(1)(ca) in the form set out earlier in these reasons. The Explanatory Memorandum does, however, discuss the intention underlying the Bill’s proposed changes to the postal industry arrangements generally. That intention, it is clear, was to expand the exceptions to the services reserved to Australia Post in order to increase competition within the industry. Thus the Explanatory Memorandum states:
“The Bill implements the Government’s reform package for Australia Post that was announced on 15 November 1993, and responds to the Industry Commission Report on the Efficiency of Mail, Courier and Parcel Service Industries.
The first group of amendments covers postal industry arrangements:
…·amendments to Australia Post’s obligations and reserved services (Part 3 of the Act) to give effect to the Government’s decisions to expose Australia Post to further competition.”
It can be concluded from the wording of s 30(1)(c) itself, confirmed by the passage we have set out from the Explanatory Memorandum, that the intention underlying s 30(1)(c) was:
(a)to expand the scope of that provision to include the carriage of newspapers, magazines, books, catalogues and leaflets that had been directed to a particular person or address, and/or enclosed in any sort of cover; or, at least
(b)to ensure that the direction of a newspaper, magazine, book, catalogue or leaflet to a particular person or address, and/or its enclosure in any sort of cover, would not preclude it from being categorised as such an item for the purposes of s 30(1)(c).
The article
The question to be determined is not whether the article is a letter within the expanded meaning of that term in the Act, which the parties accept it to be, but whether it is also a “leaflet” within the meaning of the Act. This is not, however, to exclude the ordinary or popular conception of a letter from consideration in determining whether or not a particular article is a leaflet.
The article is a standard‑form letter addressed to two Golden Casket Winners Circle cardholders informing them of an event that has occurred by reason of their use of their Winners Circle card in a particular way which had a potentially beneficial consequence for them personally – automatic entry into a Golden Casket bonus draw. It promises automatic entry into future bonus draws based upon what the recipients spend on any Golden Casket games within a specified period. With one exception, the absence of any salutation, the article adopts the form of a personal letter. It contains a message, expressed in the language of informal correspondence, and is directed to individual recipients (identified at the top of the first page of the letter by name, address and customer reference number) by an individual correspondent (Fiona Campbell, Winners Circle Manager) whose signature is reproduced over her printed name at the end of the article.
During the hearing of the appeal it was explained to the Court that there are in fact thirteen variations of the article, corresponding to thirteen levels of Winners Circle card usage. Within each of the thirteen variant groups the only difference between the individual articles is the recipient’s name, address and a reference number in the top right corner. We were told that in all other respects the articles within each variant group are identical.
Reasoning of the trial judge
Weinberg J considered that “leaflet” could have a very wide meaning, capable of including the article. Considering the legislative context, however, and applying the maxim noscitur a sociis (essentially a maxim pointing to immediate context as an indication of meaning), he held that the context, including especially the other types of article enumerated in s 30(1)(c) (“newspaper”, “magazine”, “book” and “catalogue”), had a narrowing effect on the otherwise potentially wide meaning of “leaflet”. His Honour reasoned (163 ALR 372 at 391):
“While [the article] is certainly capable of being regarded as a “leaflet” in the widest sense of that term, the term “leaflet” is not, in my view, used in that widest sense in s 30(1)(c) of the Act. It is used, rather, to signify a form of written communication that is wholly impersonal, and not directed to a discrete group, however large, of individuals who meet certain designated criteria.”
His Honour (at 392) distinguished impersonal communications, not directed to a discrete group who met certain designated criteria from the articles, which were:
“addressed to a specific class of person, identified by customer reference number, name, and address. The members of the class are those who have played Golden Casket games with their ‘new Winners Circle card’. It is not a wholly impersonal communication addressed at large to anyone who happens to receive it.”
A different article, conceded by Australia Post to be a leaflet, was regarded by his Honour as a leaflet because it was:
“expressed in language which is of general application. It does not purport to link its contents in any way to the particular situation of the person who receives it.”
His Honour saw the distinction between the two articles as being that the article that was not a leaflet:
“is not a communication at large, but one which is personalised to some degree, and targeted to a particular addressee, based upon criteria which the recipient of that communication happens to meet.”
As we have noted, his Honour considered that the article could be regarded as a leaflet in the widest sense of that term. In taking this view we understand his Honour to have had in contemplation a definition that turns essentially on the physical characteristics of a leaflet, such as that of the Macquarie Dictionary 3rd Edition (1997):
“A small flat or folded sheet of printed matter, as for distribution”
Such a conception of a leaflet is, however, foreign to the objects of s 30(1)(c) for the reason that it would bring within the exceptions to the reserved services a whole range of common form printed correspondence falling squarely within the traditional conception of “letters”. Printed personal letters, individually addressed, from organisations such as insurance companies, credit providers, medical benefit funds, clubs and societies to existing customers or members, concerning some aspect of their ongoing relationship, are just some of the examples that come to mind. As a matter of ordinary usage, these are not “leaflets”, even if comprised of only one printed sheet and sent in the same form to many customers or members with the same interest. Such communications are not in any area of conceptual overlap; according to ordinary usage they are simply “letters”, not “leaflets”. A far-reaching, and to a large extent arbitrary, exclusion of letters in the traditional sense from the services reserved to Australia Post is unlikely to have been the intended consequence of the use of an expression such as “leaflet”. It is much more likely, in the context, that the expression “leaflet” was intended to look beyond mere physical form to the essential nature of an article as discerned both from its physical form and from its content. The collocation of concepts within s 30(1)(c), relied upon primarily by his Honour, points in the same direction.
The evident intention of the legislation to enlarge the area of competition in the postal industry certainly tells against any artificial restriction of the concept of “leaflet” but it does not, in our view, point to an extended concept that ignores the nature and substance of the communication and looks only to its physical characteristics
If, then, content is relevant to determine whether or not an article is a leaflet, it becomes clear that the article is not a “leaflet”. The personal nature of the article, identified by his Honour, can be refined further, such that the article can be seen as a communication that arises out of a pre-existing relationship that is recalled in, and is relevant to, the substance of the communication. When the article is so regarded, it does not come within the ordinary boundaries of the word “leaflet”, used as a word that is capable of distinguishing an article not just by its physical form, but by reference also to its content. Wherever the boundaries might precisely lie, the boundaries of leaflet (as a concept that extends beyond physical description) do not extend to encompass a communication that is personal to the degree of being predicated upon a pre-existing relationship that is recalled in, and is relevant to, the substance of that communication.
The terms of s 30(1)(c) make it clear, as the appellant argued, that the fact that an article is directed to a particular recipient at a particular address, and that it is enclosed in an envelope, does not preclude it from being categorised as a “leaflet”. It follows from what we have said that we also agree with the appellant’s submission that whether or not an article is a leaflet is not to be determined solely by reference to its formalities (such as whether or not there is a salutation); the substance of the communication is also relevant. This is consistent with the reasoning of the learned primary judge and with our own.
Because the article is a communication arising out of a pre-existing relationship that is recalled in, and is relevant to, the substance of that communication, we conclude that it is not a “leaflet” within the meaning of s 30(1)(c) and that Weinberg J was correct in granting the declaration against which this appeal is brought.
The appeal must therefore be dismissed, with costs.
I certify that this and the preceding twenty‑one (21) paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black, Justice Lee and Justice Goldberg.
Associate:
Dated: 12 April 2000
Counsel for the Appellant
Mr G T Pagone QC with Mr D Chan
Solicitor for the Applicant:
Dunhill Madden Butler
Counsel for the Respondent:
Mr D M B Derham QC with Mr P W Almond
Solicitor for the Respondent:
Holding Redlich
Date of Hearing:
24 November 1999
Date of Judgment:
12 April 2000
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