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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1981] FCA 109
Decision Date: 16 JULY 1981

CaseChat Overview and Summary

Panelboard Pty Ltd initiated proceedings against the Trade Practices Commission, seeking declarations that the notices issued by the Commission were invalid. The notices required information and the production of documents under section 155 of the Trade Practices Act 1974, with a suggestion of a possible offence under section 45. The company argued that it was immune from responding due to the penalty involved and questioned the "relatedness" of the information sought to the potential offence. Additionally, they claimed that the notices were oppressive, ambiguous, uncertain, unreasonable, and that the material sought only went to credit.

The legal issues before the court were multifaceted. Primarily, the court had to determine whether Panelboard Pty Ltd was indeed immune from responding to the notices due to the potential penalty involved. This immunity was premised on the argument that the notices were related to a possible offence under section 45 of the Trade Practices Act. Furthermore, the court needed to consider if the notices were oppressive, ambiguous, uncertain, and unreasonable. Lastly, the court had to decide if the material sought only pertained to the credit of the company.

The court found that the immunity claimed by Panelboard Pty Ltd was not applicable because the notices did not directly relate to a penalty under section 45. It was held that the notices were not oppressive, ambiguous, uncertain, or unreasonable. The court ruled that the material sought was not limited to issues of credit, but rather, it pertained to the substantive matters under investigation. Consequently, the court dismissed the application, finding that the notices were valid and that the company was not immune from responding. The court ordered that the application be dismissed, with costs, and granted liberty to the parties to apply further if needed.

Orders

Orders of the court

In each case, the Court orders that:

1) The application be dismissed, with costs.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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