Panelboard Pty Ltd v Trade Practices Commission

[1981] FCA 109

Re: PANELBOARD PTY. LTD.
And: TRADE PRACTICES COMMISSION and RONALD MOORE BANNERMAN (1981) 59 FLR 395
No. 55 of 1978
Practices Act 1974 - Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Fox J.(1)

CATCHWORDS

Notice Requiring Information and Production of Documents Under s.155 Trade Practices Act 1974 - Possible Offence Under s.45 - Declarations Sought Under s.163A that invalid - Immunity From Responding Because Penalty Involved - "Relatedness" of What Sought to Possible Offence - Oppression - Ambiguity/Uncertainty - Unreasonableness - Material Going to Credit Only.

Trade Practices Act 1974 ss.45, 45A, 76, 163A.

Trade Practices - Notice requiring information and production of documents - Validity - Exposure of recipients to penalties - Relatedness of information sought to possible contraventions of Trade Practices Act - Oppressiveness of notice - Ambiguity of notice - Court able to construe notice - Matters going to credit - Trade Practices Act 1974 (Cth), ss. 45, 45A, 76, 155, 163A.

HEADNOTE

Five applications for declarations under s. 163A of the Trade Practices Act 1974 (the Act) as to the invalidity of notices issued under s. 155 of the Act seeking answering of questions and the production of information were heard together. It was agreed that the determination of the application by Panelboard Pty. Ltd. would govern the fate of the other applications. The terms of the notice appear from the judgment.

Held: (1) The notices were not invalid as requiring a person to answer a question tending to expose it to a pecuniary penalty.

Melbourne Home of Ford Pty. Ltd. v. Trade Practices Commission (1979), 36 FLR 450, applied.

R. v. Associated Northern Colleries (1910), 11 CLR 738, referred to.

(2)(a) For a notice under s. 155 of the Act to be valid the information it sought should appear to be related to an investigation of an actual or possible contravention of the Act. W.A. Pines Pty. Ltd. v. Bannerman (1980), 41 FLR 175, applied. (b) Provided the matters sought by the question or request appeared to be reasonably capable of supporting an investigation into particular offences or of showing defences thereto and the question or request was not otherwise invalid it would be allowed.

(3) A question or requirement in a notice issued under s. 155 was not invalid solely on the ground of uncertainty or of ambiguity unless a point is reached where it cannot reasonably be given any meaning. If timely application is made to the court it would construe the document and if at all possible place a meaning on it.

King Gee Clothing Co. Pty. Ltd. v. Commonwealth (1945), 71 CLR 184; Cann's Pty. Ltd. v. Commonwealth (1946), 71 CLR 210; Fawcett Properties Ltd. v. Buckingham County Council, (1961) AC 636; Television Corporation Ltd. v. Commonwealth (1963), 109 CLR 59; Mixnam's Properties Ltd. v. Chertsey Urban District Council, (1964) 1 QB 214; (1965) AC 735, referred to.

(4) In requiring the production of very many documents, in this case, because of the size of the respondent's business, an otherwise proper requirement led to a heavy burden. However, unreasonableness or oppressiveness were not grounds of invalidity of the notice per se and a lack of power arising in any other way had not been established.

Williams v. Melbourne Corporation (1933), 49 CLR 142; King Gee Clothing Co. Pty. Ltd. v. Commonwealth (1945), 71 CLR 184, referred to.

(5) The recipient of the notice had simply to do its best to answer the questions contained therein and was free in its answers to explain the basis upon which it proceeded. It was not a valid objection that the questions may also go to credit.

(6) Where the notice sought the reason for particular action it was to be construed as meaning proximate reasons.

Mikasa (N.S.W.) Pty. Ltd. v. Festival Stores (1972), 127 CLR 617, referred to.

(7) Applications dismissed.

HEARING

Melbourne, 1981, March 16-18; July 16. #DATE 16:7:1981

APPLICATIONS.

Five applications for declarations under s. 163A of the Trade Practices Act 1974 were heard together.

F.H. Callaway, for the applicant.

M.E.J. Black Q.C. and R.A. Finkelstein, for the respondent and for the Commonwealth Attorney-General.

D.G. Williamson Q.C. and P.C. Heerey, for Bernie Timber Pty. Ltd.

A.J. Myers, for Softwood Holdings Ltd.

P.C. Heerey, for Woodland Ltd.

W.F. Ormiston Q.C. and D. Shavin, for Pyneboard Pty. Ltd.

Cur. adv. vult.

Solicitors for the applicant: Weigall & Crowther.

Solicitor for the respondent and for the Commonwealth Attorney-General: B.J. O'Donovan, Commonwealth Crown Solicitor.

Solicitors for Burnie Timber Pty. Ltd.: Paveys.

Solicitors for Softwood Holdings Ltd.: Arthur Robinson & Co.

Solicitors for Woodland Ltd.: Morris Fletcher & Cross.

Solicitors for Pyneboard Pty. Ltd.: Freehill Hollingdale & Page.

T.J. GINNANE

ORDER

In each case, the Court orders that:

1) The application be dismissed, with costs.

2) The parties have liberty to apply. Orders accordingly.

JUDGE1

I am hearing together, by consent, five applications for declarations under s.163A of the Trade Practices Act, 1974 as amended. Each of the applications relates to notices in closely similar terms addressed to the applicants respectively by the Chairman of the Trade Practices Commission under s.155 of that Act. In these notices, which are quite lengthy, the Commissioner seeks answers to questions and the production of documents. This material is expressly sought on the basis that there may have been a contravention of s.45 of the Act, which deals with arrangements restricting dealings or affecting competition. S.45 is to be read in conjunction with s.45A.

The notices under s.155 were served as long ago as August and September 1978 and the present applications were made in October of that year. They were current at the time that the Melbourne Home of Ford cases, as they have been called, were being dealt with. There were twenty of the latter, all heard together. As the questions raised, or most of them, were common to both groups of cases, those which I am at present considering were not brought on for hearing while the others were being dealt with. It is common ground that most of the questions, including the most important questions, were decided by a Full Court of this Court in the Melbourne Home of Ford cases, and that I am in relation to those questions bound by authority. Counsel for the respondent Trade Practices Commission, and its Chairman, Mr. Bannerman, also appears for the Attorney-General of the Commonwealth, pursuant to s.78A of the Judiciary Act, 1903 as amended, but, as counsel expected, no constitutional question has arisen.

The first report of the Home of Ford cases is in (1979) ATPR 40-107, under a title which may be shortened to Melbourne Home of Ford Pty. Ltd. v Trade Practices Commission and Bannerman. This was a report of the hearing of a special case by a Full Court. Eleven questions were submitted by the trial judge, Smithers J, who also sat on the Full Court. His Honour answered eight of the questions submitted, and the other two judges (Franki and Northrop JJ) answered five. The subsequent hearing before Smithers J is reported at (1979) 2 ATPR 40-131. Thereafter there was an appeal to a Full Court comprising Brennan, Keely and Fisher JJ reported at (1980) ATPR 40-174. The appellate Court did not allow to be raised again two matters which had been answered by the earlier Full Court. I will mention these again later. The High Court refused the applicants special leave to appeal (7 November 1980).

For the purposes of the present hearing before me, the case of Panelboard Pty. Ltd. (VG No. 55 of 1978) has been taken as an example, in the sense that answers to its submissions will apply equally to the other cases as well. What counsel has submitted on its behalf has of course been augmented by submissions made on behalf of the other applicants.

There has been filed an agreed statement relating to certain facts and documents in the Panelboard application and I should express my appreciation that this has been done. The first notice concerning Panelboard, dated 21 August 1978, was sent to its holding company, Gibbs Bright & Co. Pty. Ltd., but, after Panelboard had suggested that the notice was intended for it, a fresh notice, in the same terms, was issued on 29 September 1978. The Chairman required the second notice to be answered and documents produced on 10 October 1978, allowing a period which might be regarded as impossibly short, but for the fact that the earlier notice had been issued. No point was taken by Panelboard on this aspect.

I think it will improve understanding, and save time in the long run if I set out the notice in full, omitting formal matters at the end:

NOTICE UNDER SECTION 155

Pursuant to section 155 of the Trade Practices Act 1974 (in this Notice referred to as "the Act"), I, RONALD MOORE BANNERMAN, Chairman of the Trade Practices Commission, having reason to believe that Panelboard Pty Ltd (in this Notice and the Schedules to this Notice referred to as "the company") is capable of furnishing information and producing documents relating to matters that constitute, or may constitute, contraventions of section 45 of the Act, namely, that the company has -

. made an arrangement or arrived at an understanding with certain manufacturers in Australia, provisions of which had the purpose, or had or were likely to have the effect, of fixing, controlling or maintaining, or provided for the fixing, controlling or maintaining of the wholesale prices for, and any discounts or allowances in relation to, particleboard supplies by the manufacturers, in competition with each other; and

. given effect to provisions of an arrangement or understanding between certain manufacturers in Australia being provisions which have the purpose, or have or are likely to have the effect, of fixing, controlling or maintaining the wholesale prices for, and any discounts or allowances in relation to, particleboard supplied by the manufacturers, in competition with each other.

HEREBY REQUIRE the company to furnish to the Trade Practices Commission the information specified in Schedule I to this Notice, in writing signed by a competent officer of the company, by handing the said information to LENEANE JAYNE CHOONG or to ALAN RAYMOND DUCRET members of the staff assisting the Commission and acting on its behalf, at the office of the Commission at 3rd Floor, 99 Queen Street, Melbourne, between the hours of 10.00 am and 4.00 pm on Tuesday the tenth day of October 1978,
AND I HEREBY REQUIRE the company to produce all documents in the possession, power or control of the company specified in Schedule II to this Notice to the said LENEANE JAYNE CHOONG or ALAN RAYMOND DUCRET at the office of the Commission at 3rd Floor, 99 Queen Street, Melbourne, between the hours of 10.00 am and 4.00 pm on Tuesday the tenth day of October 1978.

Insofar as any information specified in Schedule I to this Notice is contained in a document produced in compliance with Schedule II to this Notice, the information may be furnished by identifying the document and referring to it, provided that -

(a) the document discloses on its face -

(i) the date it originated;
(ii) the person who originated it; and
(iii) if the document was passed to another person, the name of that person; or

(b) those matters are stated when referring to the document.

In this Notice and the Schedule to this Notice, unless the contrary intention appears -

. "communication" includes correspondence, circulars, notices, letters, memoranda, minutes, notes, telegrams or telex messages, and oral conversations, including conversations at meetings or by telephone;

. "document" includes originals or copies (whether copies on paper, disc, tape, microfische or other device from which sounds, images or messages are capable of being reproduced) of correspondence, circulars, notices, memoranda, notes and minutes of meetings, other notes including diary notes, telex messages or telegrams, notes of telephone conversations or other oral conversations;

. "manufacturer" means a person who carries on a business in Australia of manufacturing particleboard;

. "particleboard" means standard grade particleboard;

. "price" means the wholesale price for standard grade particleboard;

. "person" includes a body corporate as well as a natural person;

. the singular includes the plural and the plural includes the singular.

SCHEDULE I TO NOTICE UNDER SECTION 155 DATED THE 29TH DAY OF SEPTEMBER 1978

INFORMATION REQUIRED TO BE FURNISHED ON 10 OCTOBER 1978

(1) State whether the company is a member of the Particleboard Manufacturers' Association of Australia and, if so, the date on which it became a member.

(2) State whether, since 1 December 1977, any officer, employee or other representative of the company has attended any meeting with any officer, employee or other representative of any other manufacturer at which any of the following matters were discussed -

(a) the prices for particleboard charged by -

(i) the company; or
(ii) any other manufacturer;

(b) any changes or proposed changes in the prices of particleboard charged by -

(i) the company; or
(ii) any other manufacturer;

(c) the discounts, allowances, rebates or credits given or allowed by -

(i) the company; or
(ii) any other manufacturer,

in relation to the supply of particleboard;
and
(d) any changes or proposed changes in the discounts, allowances, rebates or credits given or allowed by -

(i) the company; or
(ii) any other manufacturer,
in relation to the supply of particleboard.

(3) If "Yes" to (2)(a)(i) or (ii), (b)(i) or (ii), (c)(i) or (ii), or (d)(i) or (ii) above, state in respect of each such meeting -

(a) the date and approximate time the meeting was held;

(b) the address of the place where the meeting was held;

(c) the name and address of the person who called the meeting and the capacity in which the person called the meeting;

(d) the purpose of the meeting;

(e) the name, address and designation of each officer, employee or other representative of the company present;

(f) the name, address and designation of each other person present and the name of the manufacturer represented by that person;

(g) in respect of each person named in response to (e) or (f), the substance of anything said by that person to those present relating to any matter referred to in (2) above;

(h) whether, to the knowledge of any officer, employee or other representative of the company, any documents were brought into existence that -

(i) recorded in whole or in part the proceedings of the meeting; or
(ii) otherwise referred, whether directly or indirectly, to anything proposed to be said or done, or said or done at the meeting; and

(i) if "Yes" to (h)(i) or (ii), in respect of each such document, particulars sufficient to identify -

(i) the date it was originated;
(ii) the person who originated it;
(iii) the name and address of the person who has possession, power or control of it; and
(iv) the meeting to which it relates.

(4) State whether, since 1 December 1977, any officer, employee or other representative of the company has received any invitation to a meeting of the nature referred to in (2) above.

(5) If "Yes" to (4) above, state in respect of each such invitation -

(a) the date and approximate time it was made;

(b) the manner in which it was made;

(c) the name and address of the person who issued the invitation and the capacity in which that person issued the invitation;

(d) the date, time and place of the meeting to which it related;

(e) the name, address and designation of each officer, employee or other representative of the company to whom the invitation was issued; and

(f) whether any communication passed between any officer, employee or other representative of the company and any officer, employee or other representative of -

(i) any other manufacturer; or
(ii) the Australian Particleboard Manufacturers' Association,
relating to -

(A) the purpose of the meeting;

(B) the identity of any person who would or was likely to attend the meeting; or

(C) whether any of the matters referred to in (2) above would be or were likely to be discussed at the meeting,
to which the invitation related.

(6) State whether, since 1 December 1977, any communication, other than a communication referred to in (3)(g) or (5)(f) above, passed between any officer, employee or other representative of the company and any officer, employee or other representative of -

(a) any other manufacturer; or
(b) the Australian Particleboard Manufacturers' Association,
relating to any of the matters referred to in (2) above.

(7) If "Yes" to (5)(f)(i) or (ii) or (6)(a) or (b) above, state in respect of each such communication -

(a) the date of the communication;

(b) the name, address and designation of any officer, employee or other representative of the company who took part in the communication;

(c) the name and designation of any officer, employee or other representative of any other manufacturer who was a party to the communication together with the name of the manufacturer represented by that person;

(d) the name and designation of any officer, employee or other representative of the Australian Particleboard Manufacturers' Association who was a party to the communication;

(e) in respect of each person named in response to (b), (c) or (d) above, the substance of what was written or said by that person;

(f) whether, to the knowledge of any officer, employee or other representative of the company, any documents were brought into existence that -

(i) recorded the communication in whole or in part; or
(ii) otherwise referred, directly or indirectly, to the communication; and

(g) if "Yes" to (f)(i) or (ii), state in respect of each such document, particulars sufficient to identify -

(i) the date it was originated;
(ii) the person who originated it;
(iii) the name and address of the person who has possession, power or control of the document; and
(iv) the communication to which it relates.

(8) State each date, since 1 December 1977, on which there has been an increase in the wholesale prices for particleboard sold by the company.

(9) In respect of each date stated in response to (8) above, state the wholesale price per square metre at which each of the following thicknesses of standard grade particleboard, namely -

(a) 4mm
(b) 10mm
(c) 13mm
(d) 16mm
(e) 18mm
(f) 25mm
(g) 35mm

was sold by the company -

(i) immediately before the said date; and

(ii) immediately after the said date.

(10) In respect of each increase in price stated in response to (8) above, state (identifying each increase date) -

(a) the reason for the increase;

(b) particulars sufficient to identify any document which supports any reason stated in response to (a);

(c) the names of officers, employees or other representatives of the company who decided to make the increase;

(d) whether any, and if so which, of the persons named in response to (c) believed at the time of making the increase, that the prices at which particleboard would be sold by any other manufacturer would increase on or about the date of the increase; and

(e) in respect of each person named in response to (d) -

(i) the basis for the person's belief;
(ii) the name of each manufacturer the person believed would so increase prices, together with particulars of the prices per square metre for each thickness of standard grade particleboard referred to in (9) above to which the person believed that manufacturer would so increase prices; and
(iii) whether in deciding to make the increase the person took into account the belief referred to in (ii).

SCHEDULE II TO NOTICE UNDER SECTION 155 DATED THE 29TH DAY OF SEPTEMBER 1978

DOCUMENTS REQUIRED TO BE PRODUCED ON 10 OCTOBER 1978

(1) All documents -

(a) recording in whole or in part the proceedings of; or

(b) otherwise referring, directly or indirectly, to, anything proposed to be said or done, or said or done at,
any meeting referred to in paragraph (2) of Schedule I to this Notice.

(2) All documents recording or constituting in whole or in part any invitation referred to in paragraph (4) of Schedule I to this Notice.

(3) All documents -

(a) recording in whole or in part; or

(b) otherwise referring, directly or indirectly, to,
any communication referred to in -

(i) paragraph (5)(f); or

(ii) paragraph (6),
of Schedule I to this Notice.

(4) All reports, surveys, analyses, submissions, minutes, memoranda, notes or other documents prepared since 1 July 1977, for consideration of officers, employees or other representatives of the company, relating in whole or in part to -

(a) (i) any of the matters; or

(ii) any meeting,
referred to in paragraph (2) of Schedule I to this Notice; or

(b) any invitation,
referred to in paragraph (4) of Schedule I to this Notice.

(5) A specimen of each price list or other document issued or used by the company since 1 January 1976 showing -

(a) prices for; or

(b) discounts, allowances, rebates or credits given or allowed in relation to,
the supply or possible supply by the company of particleboard.

(6) All documents referred to in response to paragraph (10)(b) of Schedule I to this Notice.

(7) Copies of all invoices, statements and delivery dockets issued by or on behalf of the company in the period 1 December 1977 to 30 March 1978 in connection with the supply of particleboard.

The first matter raised is that the questions asked relate to a breach or possible breach of s.45 of the Act, that s.76 provides a pecuniary penalty for a breach of that section, and that a person questioned is entitled to the common law privilege not to answer a question tending to expose him (or it) to such a penalty. Sub-section (7) of s.155 deals with the duty to answer questions or produce documents in response to a notice under that section. It is in the following terms:

"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 authorised 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."

It is submitted that this sub-section does not apply to pecuniary penalties, as distinct from criminal proceedings. It is also submitted that sub-section (5) does not have a compulsive effect in relation to information sought for the purposes of the investigation of a possible breach of s.45. This sub-section is as follows:

"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 authorised officer acting in pursuance of sub-section (2).

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

The history of the privilege claimed (and its precise expression) were discussed at some length before me and reliance was placed by the applicants on, among other cases, The King v The Associated Northern Collieries (1910) 11 CLR 738, which I am told was not cited in the Melbourne Home of Ford cases. I think the discussion was largely provoked by my own expression of interest in the point, but, after some consideration, I believe I should not express my view on it. I am obliged, nevertheless to the courtesy of counsel in debating the matter before me. The fact is, as was agreed between the parties, that the submission is covered by the decision of the Full Court in answer to questions asked in the special case. Smithers J rested his decision on s.155(7) while Franki and Northrop JJ rested theirs on sub-section (5), and on s.155 taken as a whole. On the hearing of the appeal (1980) ATPR 40-174 at p.42,409 the matter was put thus:

"The Full Court declared, inter alia, in answer to questions 1 and 3 in the stated case, that a notice given under sec.155 may lawfully require a company to which it is directed to answer questions, provide information or produce documents which might tend to expose it to a penalty under sec. 45 and 76 of the Act; and that such a notice may lawfully be directed to a company itself suspected (by the Trade Practices Commission or the person giving the notice) of a contravention of the Act."

It was these two questions which the applicants unsuccessfully sought to re-argue in that appeal.

The same point, raised in paras (a) and (b) of Panelboard's application, but common to all cases, must therefore fail so far as I am concerned. I understand that it is desired to argue or re-argue the matter at a higher level.

The remaining matters, as counsel for Panelboard has said, involve "a descent into particularity". Before examining these matters, it is appropriate to make some general observations.

The part of s.163A(1)(a) which is involved in proceedings such as the present is that which enables the Court to make a declaration "in relation to the validity of any act or thing done, proposed to be done or purporting to have been done under this Act". It is validity which is in question. In the Melbourne Home of Ford case, before the Full Court (1979) ATPR 40-107, a question was put (question iv) as to whether a person to whom a s.155 notice is addressed is relieved from complying with its requirements by reason only of the fact that the notice is (a) vexatious, (b) fishing, (c) too wide, (d) oppressive, (e) unreasonable, (f) too remote, (g) uncertain, (h) unclear, (i) such that it inquires into matters of law, (j) such that it requires the making of judgments on questions of law. The question was not answered, the Court saying that it was inappropriate to answer it on a stated case, and in fact the question was not pressed. At the hearing, Smithers J dealt with the actual requirements of the notice, and upheld it, except in two respects, which counsel for the Commission conceded went beyond proper bounds. His Honour said of them (p.18,418) that there was "real ambiguity and uncertainty . . . and that the recipient of the notice is put under the necessity of forming judgments as to what matters arose in the proceedings before the Prices Justification Tribunal in the relevant sense which he is under no duty to attempt to do". The grounds of the appeal from that decision were that the notice was "so wide, irrelevant, burdensome and oppressive" that the notice lay beyond power. It was held that provided the information or documents sought related to the matter which was specified in the notice as being a possible contravention, it was within power. The test, as Smithers J had said, was one of "relatedness". The fact that compliance with the requirements of the notice was onerous or oppressive was not a ground upon which non-compliance could be based. At the same time, approval was given to a statement by Ackner J in Clinch v Inland Revenue Commissioners (1974) 1 QB 76, 92 that "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 the notice invalid". The point at which invalidity arises because a power is exceeded in this or similar ways has ever been elusive.

It is established that for a notice to be valid, it must show on its face an appropriate connection with the statutory power under which it is issued (see Melbourne Home of Ford (1980) ATPR 40-174 at 42,412). It is necessary that it should show the power under which it is exercised, and that it is an exercise of that power. In the present case this involves adequate connection to the suspected contravention. These matters are not in dispute. The next stage, still going to valid exercise of the power, is that of "relatedness". In my view, this means, in relation to s.155, that what is sought should appear to be related to an investigation of the actual or possible contraventions, (see per Brennan J in W.A. Pines Pty. Ltd. v Bannerman (1980) ATPR 40-163). As Bowen CJ pointed out in Riley McKay Pty. Ltd. v Bannerman (1977) ATPR 40-036, possible defences are to be considered as well as the suspected contraventions. In practice the most that a court can do is to ask whether the particular requirement is reasonably capable of being regarded as "related" (Melbourne Home of Ford, on appeal, at 42,412). Bowen CJ in Riley McKay Pty. Ltd. v Bannerman at 17,408 used the test of "sufficient relevance". In Melbourne Home of Ford, on appeal, it was said by the Full Court, at 42,411:

"The power conferred by sec. 155(1) is in aid of that function and is a power which authorises enquiries both wide in scope and indefinite in subject matter. It is an investigative power which is under consideration here and it is not possible to define a priori the limits of an investigation which might properly be made. The power should not be narrowly confined."

Some questions were said to be ambiguous, or too uncertain. The approach I have adopted in this case, following the way argument was presented, is to ask whether on a fair construction there is any reasonable doubt. There are however some observations I should make. The relevance of certainty in relation to the exercise of statutory powers has been considered in many cases (see King Gee Clothing Co. v The Commonwealth (1946) 71 CLR 184, especially at 194,195; Cann's Pty. Ltd. v The Commonwealth (1946) 71 CLR 210, especially at 227,228; Fawcett Properties Ltd. v Buckingham County Council (1961) AC 636, at 662,663,670-674,676-678,687-695; Television Corporation Ltd. v The Commonwealth (1962-1963) 109 CLR 59, especially at 71; Mixnam's Properties Ltd. v Chertsey Urban District Council (1964) 1 QB 214, especially at 237, and on appeal, (1965) AC 735, especially at 752). The decisions have dealt with bye-laws, and planning and licensing conditions, but none, so far as I am aware, has dealt with a statutory power to ask questions and require production of documents. Some guidance can nevertheless be obtained from them. One conclusion which I believe can safely be drawn, notwithstanding the difference in subject matter, is that a question or requirement in a notice issued under s.155 is not invalid solely on the ground of uncertainty or of ambiguity, unless a point is reached where it cannot reasonably be given any meaning. If timely application is made to the Court, it will construe the notice as it does any other document, and, if at all possible, place a meaning upon it. Under s.163A(1) it does not, however, have power to make declarations on construction. The possibility of there being some other avenue for obtaining decisions of that nature has not been explored before me, and I shall not deal with it. In considering validity, the Court will state its decision on the meaning of the language used (or that it is meaningless) and if this decision is followed there will be a sufficient protection against prosecution under s.155(5).

Two practical problems remain for the recipient of the notice. One is that the notice will contain a time limit. An application to Court will take time, and may well put the recipient, technically at least, in default. This problem will, I have no doubt, be dealt with by sensible arrangements between the parties (as would seem to have been the position in the present case), and it may also be, depending on the facts, that the phrase "to the extent that the person is capable of complying with (the notice)" in s.155(5)(a) will be construed so as to embrace such a situation.

The other aspect is that the recipient of the notice should not be put to the necessity of clarifying a doubt by going to Court. As the problem is one which concerns both sides, directly or indirectly, it would be helpful if there were a provision in the Act which expressly enabled the Court to make suitable declarations. In the absence of such a provision practical courses can be adopted. One is simply for the recipient to ask the Commissioner for clarification, and an answer can, if desirable, be given with appropriate formality. I think the evolution of practical and flexible procedures will be important to the whole activity. The other course which could only be relied upon with safety when there is clearly ground for real doubt, is for the recipient to state clearly his own understanding of the question before answering it.

A further practical matter arises from the fact that it is for the Commission or the Chairman to ask the questions. If counsel makes it plain that a question is intended to have a certain meaning, it may not in all cases be a very profitable exercise for argument to take place concerning doubts, and their resolution. The Commission, through counsel, can perhaps be expected to say, in appropriate cases, that a fresh notice will be issued which clarifies the point at issue. In some cases there will be agreement on construction, which can be noted, or the Commission may in the course of argument make a concession which suits the recipient, and this can also be noted.

It will have been seen that the scheme of the notice is in outline as follows:

(a) There is the opening or basic part, which refers to the reason to believe, to the possible breaches of s.45, which gives details of the nature of those breaches, which makes in general terms the requirements for information and which contains definitions. The difference between the two particulars of the breach are that the first relates to a possible arrangement between manufacturers for the fixing or controlling of prices, while the second refers to the giving effect to an arrangement fixing or controlling prices.

(b) Question 1 in Schedule I is straightforward. Question 2 (i.e. para 2) asks whether meetings between manufacturers (involving the recipients) which concern prices have occurred. Question 3 asks for details of the meetings. Question 4 asks whether an invitation has been received to a meeting referred to in Question 2. Question 5 asks for particulars of any such invitation. Question 6 asks whether since 1 December 1977 a communication passed between the recipient and another manufacturer, or the association, relating to prices. Question 7 asks for particulars of any such communication, whether a document came into existence, and if so, for particulars of it. Question 8 asks whether there has been an increase in the wholesale prices for particleboard. Question 9 asks for particulars of increases. Question 10 asks for the reason for the increase, for particulars of any documents which support it, and evidence of collusion.

(c) Requirement 1 (i.e. para 1) of Schedule II relates to documents concerning a meeting referred to in question 2 (para (b) above). Requirement 2 relates to invitations to meetings referred to in question 4. Requirement 3 relates to communications referred to in question 5(f) (purpose of meeting, persons likely to attend, matters to be discussed) or in question 6 (respecting prices). Requirement 4 relates to all documents for consideration of officers of the company respecting a meeting referred to in question 2, a matter concerning prices referred to in question 2 or an invitation referred to in question 4. Requirement 5 relates to specimens of price lists. Requirement 6 relates to all documents identified in answer to question 10(b) (reasons for increase in prices). Requirement 7 requires production of copies of all invoices, statements and delivery dockets issued by the company in connection with the supply of particleboard from 1 December 1977 to 30 March 1978.

When it is said that the questions and requirements must be seen to be capable of relationship to the suspected offences, this does not mean that there must be some direct connection. The "relatedness" is to a proper inquiry into the suspected offences. As Smithers J pointed out at the hearing before him in the Melbourne Home of Ford case (at 18,415), proof of a contravention will often depend on circumstantial evidence; pointers can arise in many ways and from a wide body of material. It is the policy of the Act to give the Commissioner a wide investigative power. He cannot be expected to foretell what material will be productive of supporting evidence, direct or inferential. Neither can the Court. Provided the matters sought appear to be reasonably capable of supporting an investigation into particular offences (or of showing defences thereto) and the question or request is not otherwise invalid, the Court will allow it. Riley McKay Pty. Ltd. v Bannerman (supra) was a case in which it was apparent that several questions, because of their date relationship to the suspected offence, did not seem to be sufficiently relevant.

I turn then to proposed declaration (c) in the application. It is as follows:

"the Notice does not oblige the Applicant to furnish any information or produce any documents relating to prices, discounts or allowances (not being wholesale prices, discounts or allowances) or to rebates or credits in relation to particleboard supplied by the Company or any other manufacturer;"

So far as concerns the first part of the declaration sought, I understand that there is no longer any problem because "price" is defined to mean "the wholesale price for standard grade particleboard". There is then objection to the inclusion of "rebates" and "credits" in para 2(c), because the offences posited do not use these words, but only "prices", "discounts" and "allowances". It is pointed out that the legislation, in s.45A, acknowledges a distinction between these terms. As I have said, the Chairman can seek information which enables him to form a view as to whether there is culpability, or a defence. The notice cannot be tied to the precise terms of the particularised actual or possible contraventions. In question 2(c), the matter at issue is one of wholesale prices, and some arrangement concerning them. Discounts and allowances are specifically mentioned. The question relates to meetings which may have taken place. A discussion thereat of rebates and credits may well have significance for the offences under investigation (as, for example, a possible parallel pricing arrangement), and be relevant thereto (see Melbourne Home of Ford (1979) ATPR 40-131 per Smithers J at 18,415-6). Similarly, the reference to "discounts" and "allowances", (in (c) and (d)) unqualified by "wholesale", cannot in the context carry the inquiry outside permissible limits.

The next matter raised in argument concerns question 7(e), which asks for the substance of a communication. It relates to what was said or written by parties to the communication, but does not in itself relate the subject matter of the communication to the basic part of the notice, directly, or through question (2). A comparison was made with the language of 3(g). However, the opening words, to which paragraph (e) directly relates, are "in respect of each such communication". The communications thus referred to are all in terms related to question (2). It is a tortuous exercise to follow the references back, but it is in the end reasonably clear that what is comprehended by "such" is sufficient to overcome the particular objection.

The next ground of objection is that requirement (7) in Schedule II goes too far. The matter is dealt with as follows in paragraph 5(j) of the affidavit of Robert John Gawne, a director of Panelboard, sworn 5 October 1978:

"the Panelboard Notice requires the Applicant to furnish information and produce documents, including approximately 20,000 invoices, statements and delivery dockets that are located outside Victoria and were so located on 29th September, 1978, at the office of the Commission at 3rd floor, 99 Queen Street, Melbourne."

It is submitted that compliance is oppressive, but in view of what was said by the Full Court in the Melbourne Home of Ford case (see also Riley McKay Pty. Ltd. v Bannerman (supra)) it is agreed that it is not open to take the point before me; I am content to leave the matter that way. The documents sought are those issued during a period of four months.

It is further submitted, however, that the requirement is so unreasonable that no reasonable Chairman properly directing himself in law could think it an appropriate exercise of power to ask for the delivery dockets as well as the invoices and statements. As I understand, it is not submitted that unreasonableness is per se a ground of invalidity (see Williams v Melbourne Corporation (1933) 49 CLR 142 at 154,5; King Gee Clothing Co. Pty. Ltd. v The Commonwealth (supra)), but rather that it is, or may be, strong evidence to suggest that the Chairman went outside his powers or made some invalidating error, or exercised them in some manner resulting in invalidity. Reference was made to the Full Court on the case stated in Melbourne Home of Ford (1979) ATPR 40-107 at 18,099, to the judgment of Smithers J (1979) 40-131 at 18,419, and the Full Court on appeal (1980) 40-174 at 42,412. I made some comments as to the shortness of the time allowed under the second notice for compliance (11 days), but, as already mentioned, this was not a matter relied on. I imagine this was because there had been an earlier notice, albeit addressed to a different company, and because extension of time was readily granted, in reliance upon s.33 of the Acts Interpretation Act, 1901, as amended. If oppressiveness is not itself a ground of invalidity, it seems to me that there is not sufficient evidence to show a lack of power arising in any other way. It is not suggested that the Chairman did not act bona fide. It is not, I think, argued that what is wanted goes beyond what could reasonably be expected to be material to the inquiry; at all events, I believe one can see sufficient relatedness, although the situation becomes marginal in relation to delivery dockets. The production of these dockets, of which there are apparently very many, was particularly emphasised. There is the expense and trouble involved in producing the documents at the office of the Commission in Melbourne. On another point, it is agreed that "copies" refers to existing copies, and does not purport to impose an obligation to make copies.

I would not for myself like to say that a notice, regular on its face, cannot in any circumstance be attacked because of the harshness of its impact (time, place, number of documents are three possible factors). In this connection it can be remembered that s.163A(1)(b) enables orders in the nature of prerogative writs to be granted. The present case, however, appears to me to be one in which, because of the size of the business, an otherwise proper requirement leads to a heavy burden. This is not a basis for invalidating it.

At the same time, I am of the view that careful consideration should be given to the ambit of a requirement, and its possible consequences, so as to limit an inquiry to what is reasonably necessary. A satisfactory course in many cases might be to proceed with the investigation by degrees, reassessing requirements at each stage.

The next submission relates to question 2, and some other questions in Schedule I. The common feature relied upon is the absence of a reference to the manufacturers being "in competition". This is allied with what is said to be the absence of a relation between the prices of particleboard, and its supply, to the subject of investigation. The limitation to being "in competition" appears in the opening paragraphs of the notice and is of course the language of s.45A(1).

The answer made is that the notice is valid if the reference is not simply to manufacturers in competition but to any manufacturer, or manufacturers at large. It is pointed out that "manufacturer" is defined in the basic part of the notice to mean "a person who carries on a business in Australia of manufacturing particleboard". It was said at the same time that the language could be "read down" in the way submitted by the applicant. As I understand, the Chairman's point of view is that, while it is most unlikely that there were meetings, such as those pointed to in question 2 of Schedule I, which were not between manufacturers actually or potentially in competition, and while his concern is with manufacturers who were, he is entitled to investigate for himself what the position was. For that reason he intended to ask questions and require production of documents by reference to manufacturers (as defined) whether or not, in the view of the recipient of the notice, they were in competition. This attitude is an understandable and, I believe, a permissible one. I am of the view that where "manufacturer" is used, without expressing a qualification about being "in competition" no such qualification should be implied. As I have indicated, the Commission, and Chairman, can validly ask the wider question.

The next two submissions can be illustrated by reference to question 3(h) of Schedule I.

It is submitted that the question cannot be asked, in relation to a document, and a document should not be subject to production, part of which records, or refers to matter unrelated to the subject under investigation. At least, the irrelevant part should not be included. It is conceded that if the whole of the document records part of the proceedings, there can be no objection. Counsel for the respondents submits that the question is valid in either case, and I agree, but it is not clear what construction the Commission places on the words used. In my view the question relates to a document part or the whole of which records the proceedings, - and which records part or the whole of those proceedings.

The problem just mentioned is, it is said, exacerbated by the use of "indirectly" in the phrase "directly or indirectly" in 3(h)(ii). If the matter is traced back, a meeting will be one at which, to put it shortly, the prices, allowances, etc. for particleboard charged by the company or any other manufacturer were discussed (2(a)). A document referring to something said or done or proposed to be said or done at such a meeting may also refer to other business proposed to be done, or done, at the meeting. This seems to me an unavoidable consequence of one document dealing with several matters, but not a basis for holding invalid a request for information about it, or its production. I do not think the words "directly or indirectly" exacerbate this problem, so much as emphasise that "reference" includes indirect reference. The phrase could be left out, were it not possible that uncertainties could then arise.

It is submitted that para 3(h) goes too far in another respect. The objection is to the inclusion of any or all employees who might (in some way or another) have knowledge of a document brought into existence. Illustratively, this has been called the "tea-lady" point. The tea-lady aspect has been met by counsel for the respondents, who states that because of the words "other" in the phrase "employee or other representative" an employee referred to in 3(h) is one who can be regarded as a representative. The question should be understood in this way. I do not think it can be regarded as irrelevant to the offence particularised. If, even as qualified in the way mentioned, the recipient is not capable of complying with it, or to the extent to which he is not, he should have no cause for concern (see s.155(5)).

The next objection is one of several to para 10(b). It is submitted that the requirement merely seeks corroboration of an answer to para 10(a), which asks for the reason for the increase. This does not seem to me to be a basis for objection; quite the contrary. The same can be said of 10(d) and 10(e) of Schedule I, to which objection was also taken.

An objection to question 6 relating to the tea-lady point is met by what I have said in relation to the same point in connection with 3(h).

It is objected that question 5(f)(B) goes too far because it asks, in relation to a communication earlier referred to, the identity of any person (prospectively) likely to attend the meeting. In the context this question is in my view quite permissible.

It is submitted that there is an ambiguity or uncertainty about the word "purpose" in question 3(d). We all know that there can be refined distinctions, such as that between purpose and object, but I do not believe that there is any real difficulty in answering the question. Nor is the recipient of the notice required to make a qualitative judgment as to what was a principal or dominant purpose. I agree with counsel for the respondents that "purpose" does not mean sole purpose, but includes "purposes"; the answer should deal with all substantial or significant purposes, - so far as the company is capable of doing so. Reasonably immediate rather than remote purposes are what is in contemplation.

Objection is taken to question 9, on the ground of ambiguity. I think it should be taken to mean what it says, and that the reference is to sales immediately before, and immediately after the date or dates referred to. This view of its meaning is accepted by counsel for the respondents. If there was no sale of any of the types of particleboard just before, or just after, the date in question, the question can be answered appropriately.

In question 10(a), the "reason" for an increase price is sought. There can obviously be more reasons than one, and it is submitted that the question is bad because it does not refer to a dominant purpose, or show how otherwise the reasons are to be indicated. In my view "reason" includes "reason", and what I have said earlier about "purpose" in question 3(d) applies. It is further submitted that a "reason" is not "information" (see s.155(1)). In the present context it plainly is.

Question 10(b) asks for particulars of any document which "supports" a reason given for an increase. It is true that this involves an exercise of judgment, and can in theory at least lead to doubt and difficulty. It is still in my view a valid question. The recipient has simply to do his best to answer it, and is free in his answer to explain the basis upon which he has proceeded. His answer should of course be as free from ambiguity and uncertainty as it can reasonably be made to be. It is not in my opinion a valid objection that the question may also go to credit.

Objection is taken to reliance upon "belief" in question 10(d). I think this is a valid question.

There is an objection to requirement 1(b) of Schedule II, which has a relevant counterpart in Schedule I. The objection is to the inclusion of a document recording what is proposed to be said or done at a meeting. This is plainly something which can be helpful to an inquiry and is relevant to the particular inquiry.

Objections were taken to requirement (4) in Schedule II. The only one not dealt with elsewhere is that the applicants should not be required to produce documents which although prepared for consideration were not acted on. An individual document in this category may prove of no value to the inquiry, but as a class I believe they can be, and that the question has the appearance of being sufficiently relevant.

The applicants other than Panelboard adopted the arguments of the latter, but in some cases added emphasis to those arguments and submitted further arguments. Evidence was tendered on behalf of these applicants, Burnie Timber Pty. Ltd., Softwood Holdings Limited, Woodland Limited and Pyneboard Pty. Limited, but it was not relied on as carrying the submissions before me any further. Mr. Ormiston, for Pyneboard, raised additional points concerning the attribution of a "reason" for a price increase, as required by question 10(a). He refers to a possible long drawn out process of reasoning, with many steps. He also asks how one decides the "reason" of a corporation. This latter aspect does not relate precisely to the question asked, but I will comment on it.

Guided by Mikasa (NSW) Pty. Limited v Festival Stores (1972) 127 CLR 617, which was a case on the construction of a statute, it seems to me, in answer to the first part of the objection, that one looks to proximate reasons, rather than remote ones. That case also shows that a corporation can have a reason ascribed to it. I take it to be accepted law, perhaps having its starting point in Lord Haldane's speech in Lennard's Carrying Company Limited v Asiatic Petroleum Company Limited (1915) AC 705 at 713,714 that a corporation can have an intent or an object or a purpose. (See, for example, Smorgon v Australia and New Zealand Banking Group Ltd. and Others (1976) 134 CLR 475 at 482). Although the reasoning of Bowen CJ in Riley McKay Pty. Ltd. v Bannerman was not relied on in this connection by the applicants, he did say (at 17,407):

"Section 155 contemplates that a notice may be directed to a body corporate in which case the answer is to be in writing signed by a competent officer. Where a question seeks information about a fact, for example a date, no difficulty arises. Where, however, the question seeks information as to whether the corporate body is aware of something or has a particular knowledge or belief, it appears to me that it is inappropriate simply to ask what is the awareness or knowledge or belief of the body corporate. In such a case, a question should, as may be appropriate, ask what was the awareness, knowledge or belief of, for example, the directors or certain employees of the body corporate."

The present notice seems to me to take account of this criticism, because it goes on to refer to officers who made a decision to increase prices, and their beliefs. It is still for the company to answer the questions.

Having made "reason" an almost meaningless term, counsel was naturally able to point to the impossibility of having to answer a question, as in 10(b), dealing with a document which "supports a reason". I can only say, as I said at the time, that if a serious practical problem really arises, the recipient can only do his best to comply. The question is not in my view invalid.

In conclusion, I should say that what has happened in the course of this hearing is that the intended meaning of one or two questions have been clarified by senior counsel for the respondents. I have not found any question or requirement to be invalid. I note that in Riley McKay Pty. Ltd. v Bannerman Bowen CJ, in response to the form of the declaration which was sought, declared that certain questions constituted proper requirements to furnish information under s.155 of the Act, and that others did not. In Melbourne Home of Ford the declarations asked for were in form more like those sought in this case. Smithers J ordered that in certain respects (being those the subject of the concessions I have mentioned) the operation of s.155 did not oblige the applicants to furnish the information or produce the documents sought, but otherwise he dismissed the application.

In the circumstances, the appropriate order is that the applications be dismissed in each case, with costs.

In case there is a situation which requires a variation in the form of this order, or there is some incidental matter for consideration, I reserve liberty to apply.