Pyneboard Pty Ltd v Trade Practices Commission

Re: PYNEBOARD PTY. LIMITED; PANELBOARD PTY. LIMITED; BURNIE TIMBER PTY.
LIMITED and SOFTWOOD HOLDINGS LIMITED
And: TRADE PRACTICES COMMISSION and RONALD MOORE BANNERMAN (1982) 57 FLR 368
NSW No. G95 of 1981
VG Nos. 142-144 of 1981
Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES AND VICTORIA DISTRICT REGISTRIES
GENERAL DIVISION
Northrop(1), Deane(1) and Fisher(1) JJ.

CATCHWORDS

Trade Practices - Notices pursuant to s.155 of the Act - validity of notices - whether exposure of person to liability for pecuniary penalty will excuse from furnishing information and producing documents as required by notice - necessary degree of certainty - necessary element of relatedness - where notice is partially invalid - harsh, oppressive and unreasonable.

Trade Practices Act, 1974, ss.45, 76, 155

Australian Industries Preservation Act, 1906, s.15B

Income Tax Assessment Act, 1936, s.264(1)(b)

Trade Practices - Power of Commission to obtain information, documents and evidence - Notice under s. 155 - Privilege against exposure to penalty - Whether notice invalid for uncertainty, irrelevance - Whether notice harsh, oppressive and unreasonable - Trade Practices Act 1974 (Cth), s. 155.

HEADNOTE

Each of the appellants had received a notice issued under s. 155 of the Trade Practices Act 1974 from the second respondent, who was the Chairman of the Trade Practices Commission, requiring the furnishing of information and production of documents in relation to suspected breaches by them of Pts IV and VI of the Act.

The appellants commenced proceedings under s. 163A of the Act seeking declarations that the notices did not oblige them to answer questions or deliver documents which might tend to expose them to a penalty, and that the notices were otherwise invalid.

Held: (1) The privilege against exposure to a penalty is abrogated by the provisions of s. 155.

Melbourne Home of Ford Pty. Ltd. v. Trade Practices Commission (No. 1) (1979), 36 FLR 450, followed.

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

(2) Uncertainty or ambiguity will not invalidate a s. 155 notice unless a point is reached where it cannot reasonably be given any meaning.

Fawcett Properties Ltd. v. Buckingham County Council, (1961) AC 636, referred to.

(3) For a notice pursuant to s. 155 to be valid it must: (a) be an exercise in good faith of the power; (b) convey with reasonable clarity to the recipient the information he is required to furnish or the documents he is required to produce; (c) disclose that the member of the Commission giving it is entitled to require that the recipient furnish the information or produce the documents which the notice describes, Federal Commissioner of Taxation v. Australia and New Zealand Banking Group Ltd. (1979), 53 ALJR 336, applied.

(4) Where a question in a s. 155 notice is so framed as to include matters concerning which the questioner is not entitled to ask, the person to whom the question is put may refuse to answer it in that form provided that a blue…