Pac-Rim Printing Pty Ltd v Australian Postal Corporation M45/2000

[2000] HCATrans 777

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M45 of 2000

B e t w e e n -

PAC-RIM PRINTING PTY LTD

Applicant

and

AUSTRALIAN POSTAL CORPORATION

Respondent

Application for special leave to appeal

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 DECEMBER 2000, AT 9.30 AM

Copyright in the High Court of Australia

MR G.T. PAGONE, QC:   If the Court pleases, I appear with my learned friend, MR D. CHAN, for the applicant in that matter.  (instructed by Minter Ellison)

MR D.M.B. DERHAM, QC:   If the Court pleases, I appear with my learned friend, MR S.M. ANDERSON, for the respondent.  (instructed by Holding Redlich)

McHUGH J:   Yes, Mr Pagone.

MR PAGONE:   If the Court pleases.  Your Honours, we have summarised the issue in a simple point at page 77 of the application book in this way:  your Honours will see at about line 24, paragraph 4, that the issue in this proceeding concerns the area within which the applicant and Australia Post may engage in competitive commercial activity.  The importance and significance of the issue we have set out at application book page 81 under the heading “Reasons why special leave should be granted”.  Your Honours will see that we set out the principal significance of the issues under three headings.  Firstly, that the question is of general application because the outcome of this proceeding will delineate the area of commercial activity which may lawfully be undertaken ‑ ‑ ‑

McHUGH J:   But why would that be so, Mr Pagone?  These questions turn on questions of fact.  The statement that you rely on in the last few lines at paragraph 21 of the Full Court’s judgment has to be read in terms of that case.  It does not purport to be an exclusive test and it could not be an exclusive test.  How can any court interpret this expression in a way that would be definitive?  It is something that has to be done on a case by case basis.

MR PAGONE:   Your Honour, there are, of course, two questions.  There is a question about the application of the test to the particular facts - that is one matter.  That, of course, does need to be done on a case by case basis.  There is, I accept, your Honour, the question of the interpretation of the words generally and it may that one cannot identify a legal test for the words that will apply to every situation, that is conceivable, in which case one is left with the question of what have they done here and whether the test that the court has adopted here is either correct or a test that is deficient in a fundamental respect.  If the Court pleases, it is our submission that, indeed, on the question of construction, the court simply got it wrong. 

McHUGH J:   But what question of construction?  They reject the extreme view, the Macquarie Dictionary view, upon which you rely and then, explaining their reasons in paragraph 21, they say it:

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” ‑ ‑ ‑

MR PAGONE:   Your Honour, it is true they say that and, focusing just upon the words “pre-existing relationship”, one would say there is no warrant for regarding the definition of the meaning of the word “leaflet” in this ‑ ‑ ‑

McHUGH J:   In a particular case, there may be, and that is what they said here.  I must say, looking at it myself, I would not have the slightest doubt that the Full Court’s decision was correct.

MR PAGONE:   Can I take your Honours to the judgment.  The reasons for decision effectively begin at page 66 of the application book.  Your Honours will see that at the very bottom of the page they set out the reasons of the trial judge.  Then if I can take the Court to the end of the next page, 67, having set out their Honours’ understanding of the trial judge’s reasons, at the bottom of the page they then say, paragraph 16, his Honour rejected the widest term.  Then paragraph 17, page 68, they say this:

Such a conception of 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”.

Now, your Honours, one could go through the rest of the paragraphs, but what their Honours did was to set up a dichotomy that is not found in the legislation.

McHUGH J:   No, they are not setting up a dichotomy.  They are saying no more than if you accepted the statement that “a small, flat or folded sheet of printed matter, as for distribution” was a leaflet for the purpose, then it would not leave much left of the monopoly and it would include, for example, a printed personal letter which is “a small, flat or folded sheet of printed matter, as for distribution”.

MR PAGONE:   Your Honour, with respect, they set about providing content to the meaning of the word “leaflet” by reference to a conception of what one might describe as an ordinary letter.

McHUGH J:   No, they do not set about providing content.  What they do is they exclude certain material from it.  They leave it at large.

MR PAGONE:   Your Honour, in that exclusion they have sought to import notions of what a letter is rather than asking oneself what content should be given to the meaning of the word “leaflet” without presupposing that the legislature had intended to exclude some things that in form - because it is only in form - the thing might look like a letter.  Their Honours seem to adopt a test at paragraph 19 – this is not a question of application at this stage, but a construction – in the second line they say:

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.

Then at the bottom of that page:

Wherever the boundaries might precisely lie, the boundaries of leaflet…..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.

Now, your Honours, with respect, we say that cannot possibly be an accurate test of “leaflet” for the purposes of the section.  One reason why we say that cannot be so is because if one looks at section 30(1)(c) itself, one of the things that one sees in the provisions is that the exemption from the monopoly extends to:

the carriage of a newspaper, magazine, book, catalogue or leaflet, whether or not directed to a particular person or address and ‑ ‑ ‑

McHUGH J:   But that is understandable.  I mean, if a conventional political leaflet says “Vote for Bloggs”, the fact that it is put in an envelope and addressed to a particular person does not stop it from being a leaflet.  But at least one thing that is commonly found in a leaflet is an impersonal tone in the sense that it is not directed to the recipient as a particular person.

MR PAGONE:   Your Honours, if all that has happened is that what would be regarded as an impersonal thing is put in the form of a letter, that is to say, that it is structured to have effect so that when it is read gives the appearance of immediacy, it does not convert it from a leaflet; it simply says that one has adopted a marketing tool to achieve a particular result.

McHUGH J:   That is the problem that is faced here.  It is done on the “nicely, nicely” relationship basis, “We’re talking to you personally, this is what we’ve got for you”, and now you want to argue it is a leaflet.  Well, they will just have to change their marketing device, or they will have to work through Australia Post. 

MR PAGONE:   Your Honour, one of the other reasons why the definition that their Honours adopted is both, we would say, not terribly helpful, even within the limited class of articles in contemplation here but also wrong, is because the monopoly is essentially linked to the fundamental purpose of the monopoly of providing a letter service.  Your Honours will see, I think at section 27, that Australia Post - as the flip side of the monopoly there is an obligation, and the obligation is to provide a standard uniform rate for the delivery of certain parcels.  Those parcels, your Honours, are defined in section 3, in effect, requiring that certain characteristics are possessed by the article and one of the characteristics is that the article not weigh more than 250 grams.

What happened in 1994, your Honours, was that not only was the definition the exception to the reserved service change, hence increasing the available competitive behaviour, hence taking away a bit from the monopoly, but in return, Australia Post was given something back and what they were given back was that the obligation to provide the standard uniform rate was restricted to, amongst other things, items that weighed only 250 grams.  That is to say, it was able to charge more.  It did not come within the terms of the restriction if it delivered items that weighed more than 250 grams.  So that at the same time as there is an increasing in competitive behaviour of those people of Australia Post, so too Australia Post is given greater freedom to engage in competitive behaviour ‑ ‑ ‑

McHUGH J:   Yes, I know, but let us concentrate on the facts of this particular document at page 26.  It is addressed to Mrs Hancock and Mrs Fletcher:

Thank you for playing your favourite Golden Casket games with your new Winners Circle card.

There is a customer reference number at the top of the page.

As a new Winners Circle cardholder, I’m delighted to tell you that you have been automatically entered…..

This means you could be –

et cetera.  Then it is signed.  Now, I do not think there would be too many members in the community, outside some sections of the marketing area, who would regard that as a leaflet.  There are concurrent findings of fact in this particular case that it was not a leaflet, and at the moment you certainly have not persuaded me that there has been any misdirection of law.

MR PAGONE:   Your Honour, if attention to the particular item is useful as, with respect, it is for the question of construction, may I take your Honours to the document which your Honours should have at page 101 of the application book which is in fact an example of the article in question.  Your Honours will see that it appears – hopefully your Honours have not taken it out of the envelope yet because ‑ ‑ ‑

McHUGH J:   No, I have looked at the copies of the different articles that are photostated in the book, probably not as ‑ ‑ ‑

MR PAGONE:   Before your Honours were to take it out, if your Honours would note, first of all, that the front of the envelope looks like this.

McHUGH J:   Yes.

MR PAGONE:   That is the front, your Honour, not the addressee, the front of the envelope is the “Join our winners!”.  That is how it is presented.  It is on the back that one then has the information, the addressee and so on.

McHUGH J:   Why do you say that is the back?  I mean, my copy is like that.

MR PAGONE:   I suspect your Honour’s copy may have been looked at and put back in incorrectly.  The way they were all sent ‑ ‑ ‑

McHUGH J:   How do we know that is not done all the time?

MR PAGONE:   Your Honours, the way in which they were designed to be sent was the way in which I have indicated.  When one then opens the envelope, one takes out a document that is not in A4, it uses the expression “you” and it is accompanied by an article which is an A4 sheet of paper which does also use the word “you”, is purported to be signed, purported only in the sense that there is a printed signature in a different colour.  With respect, we would say that no member of the community would regard this as a personal letter of the kind that they might receive equivalent or even suggestive of the kind they might receive from dear old mum, that far from it being a letter, almost every member of the community would regard it, if I may say so respectfully to those paying for it, as junk mail and of the kind which is usually dispatched very rapidly in the appropriate place.

So that all that has occurred is that marketers have converted a marketing tool by giving it the form of a letter because it is thought to be effective from a marketing form of view, and to construe the Act in a way that requires the word “leaflet” to be given some connotation that prevents marketers from engaging in developing their skills would, in our respectful submission, be quite wrong.

Your Honours, if I can come back to what their Honours said, the first step in the element of the reasoning, both at first instance and on appeal, was that the word appearing in the section, as it does, had a narrowing effect.  So that their Honours did not ask themselves, “Well what meaning should we give to a leaflet at large?”, but rather were of the view that the word should be narrowed down in some way.

McHUGH J:   I know, Mr Pagone, but even if you are able to show that there was an arguable case, why is this a special leave case, in any event?  It is just a question of construction of an Act of the Federal Parliament and, no doubt, like all Acts of the Federal Parliament, or the great majority of them, it raises important points, but that is not a ground for special leave.

MR PAGONE:   Your Honour, we would respectfully say it is a ground for special leave because the importance of it is much greater than either this article or this item.  This, your Honours, is an item which was distributed by my client to 417,000 people in one city alone - one item.  They were in the business of delivering items of this kind and they are not the only ones.  It is important because the parties who engage in this form of commercial activity ought to have the certainty of knowledge of what they can and cannot do.

McHUGH J:   On your view, you have it.  It is in the Full Court of the Federal Court’s decision, a unanimous decision, upholding the trial judge on the facts, although not the reasoning.  I mean, this Court cannot be taking on questions of construction unless there is something special about the case.

MR PAGONE:   But, your Honour, with respect, we say there is something special about this case because the question of construction (a) we say is wrong, and (b) we say is unhelpful, and not only unhelpful in relation to articles of this kind but in relation to articles of different kinds; and we say further it is important for everybody to know what they can and cannot do as a matter of commercial activity.

McHUGH J:   The Full Court has told you.

MR PAGONE:   But, your Honour, with respect, the Full Court, we say, has not given sufficient certainty.  Apart from that, we say it is wrong. 

McHUGH J:   Common experience would indicate you are unlikely to get certainty out of this Court.

MR PAGONE:   Your Honour, that is, with respect, a submission we would take issue with and, in any event, there is always hope and we would urge the Court to provide greater certainty than has been given by the Full Court in the past.

Your Honours will see from page 80 that we too regard - and it is paragraph 17.  We set out in paragraph 16 the characteristics that we say the leaflet must have and in paragraph 17 we say that there are other factors that may be relevant to the question and your Honours will see that we too regard that the degree of personalisation of the article may be a relevant factor in deciding whether something is or is not a leaflet.  So that, for example, your Honours, a letter communicating specific information of a personal kind to your Honours, perhaps from your insurance company or perhaps from some organisation that your Honours might belong to, we would say would show a degree of personalisation that is much greater than a marketing exercise designed to do no more as the object plainly does not do any more than simply seek to advertise.

McHUGH J:   Yes, I know, but the ingenuity of advertisers will very easily get around the effect of this decision.  You will be able to delete a word here, insert another word there and then you will probably have another case.

MR PAGONE:   If your Honours please.

McHUGH J:   Thank you, Mr Pagone.  We need not hear you, Mr Derham.

The Court is of the view there is no reason to doubt the correctness of the decision of the Full Court of the Federal Court.  Special leave is refused.  It must be with costs.

AT 9.50 AM THE MATTER WAS CONCLUDED