Refrigerated Express Lines (A/asia) Pty Ltd v Australian Meat and Live-Stock Corporation

[1980] FCA 45

CATCWORDS

Trade Practices - Action for injunctive relief and damages -

Relationship between Parts IV and X of the Trade Practices Act, 1974 -

Overlap and conflict in the practical operation of the provisions of

both Parts - Statutory construction - Repugnancy between general -

provisions or' o( statute and provisions dealing with	a particular
subject matter.

Trade Practices Act, 1974 ss. 2A, 45(2) 45A, 45D, 45D(IAO, 46(1), 47, I

51(2)(g). 76, 80, 82, 1 1 1 , 112, 113, 122, 123, 124, 128, 129, 130, 140.

Constitution ss. 51(i), 51(xx).

Meat Industrv Act, 1964 S . 30(?).

Australian Meat and Live-stock Corporation Act, 1977 S. 14(1).

REFRIGERATED EXPRESS LINES (A/ASIA) PTY LIMITED v. AUSTRALIAN MEAT AND

LIVE-STOCK CORPORATION	AND ORS.
No. G67 of 1979.

CORAM: Deane Friday 1 1 Aprll, 1980. J.

I N THE	FEDERAL	COURT	OF	AUSTRALIA	)
1

NEW	SOUTH	WALES	D I S T R I C T	R E G I S T R Y	)	NO.	G 6 7	of	1979
)

GENERAL D I V I S I O N 1

BETWEEN: REFRIGERATED EXPRESS

LINES	(A/ASIA)	PTY.
LIMITED

A p p l i c a n t

AND :	-	AUSTRALIAN MEAT AND
LIVE-STOCK
CORPORATION & ORS.

R e s p o n d e n t s .

JUDGE : DEANE J.

-	DATE :	Friday,	11 A p r i l , 1980.
P U C E :	Sydney

RULINGS :

PRELIMINARY POINT :

l(i)	That P a r t I V of the Trade Pract ices A c t 1974 does no t apply t o the w h o l e or any of
the conduct on the par t of the respondents
a l leged i n the s t a t e m e n t of claim f o r the reason that such conduct i s conduct i n the course of overseas cargo shipping engaged
i n by a s h i p o w n e r i n p u r s u a n c e of a

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conference agreement or alternatively

conference agreements within the meaning

of s.112.

RULING: My ruling on l(ii) makes it unnecessary deal with this preliminary point. to

PRELIMINARY POINT :

l(ii) Alternatively, that Part IV of the Trade

Practices Act does not apply to the whole

or any part of the conduct on the part of

respondents alleged in the statement of

claim for the reason that such conduct is

conduct in relation to outwards cargo

shipping.

RULING: I uphold this preliminary point in full.

PRELIMINARY POINT :

2. That the conduct alleged against the respondent the Australian Meat and

, .

Live-Stock Corporation in paragraphs 29 to

34 of the amended statement of claim does

L

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not, in the light of the provisions of the

Australian Meat and Live-stock Corporation

I .

- Act, 1977, involve any contravention of

the provisions of the relevant section

(s.46) of the Trade Practices Act, 1974.

RULING: My ruling on l(ii) makes it unnecessary to

deal with this preliminary point.

i

I

IN THE FEDERAL COURT	OF AUSTRALIA	)
1

NEW SOUTH WALES DISTRICT REGISTRY NO. G67 of 1979

1

DIVISION GENERAL 1

BETWEEN :

REFRIGERATED EXPRESS LINES

(A/ASIA) PTY. LIMITED

Applicant

AND :	-	AUSTRALAIN MEAT AND LIVE-
STOCK CORPORATION

First Respondent

-	ASSOCIATED CONTAINER
TRANSPORTATION (AUSTRALIA)
LIMITED Second Respondent
AND :
-	AUSTRALIAN SHIPPING
COMMISSION (TRADING AS
AUSTRALIAN NATIONAL LINE)

AND :

Third Respondent

AND :

-

Fourth Respondent

AND : - FARRELL LIWES INC.

Fifth Respondent

-

TRADER NAVIGATION CO.

LIMITED (TRADING AS

ATLANTTRAFIK EXPRESS

AND :

Sixth Respondent

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- ROY GEOFFREY JONES !

AND :

Seventh Respondent

AND :

- CHRISTOPHER CULLEN

Eighth Respondent

AND :

- NIGEL TULMH

Ninth Respondent

- NORST WALTER R I L K

AND :

Ten th Respondent

- AND : EDGAR ALBERT ENGELHARDT

Eleventh Respondent

AND :	PETER Twelfth Respondent	SEMMLER
_.

CORAM: Deane J.

Friday 11 Apr i l , 1980.

REASONS FOR JUDGMENT

I n these p r o c e e d i n g s , R e f r i g e r a t e d Expres s Lines

(Australasia) Pty. Limlted ( "the appl icant" ) seeks in -~unct ive

r e l i e f and damages against S A X c o r p o r a t e a n d s i x p e r s o n a l

respondents . The b a s i s of t h e p r o c e e d i n g s i s a l l e g e d

contravention and involvement in cont ravent ion of the provis ions

of Par t I V of the Trade Practices A c t , 1974 ( "the A c t " ) .

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The following preliminary points have been taken on

behalf of the respondents:

1. (i) That Part I V of the Trade Practices Act 1974

does not apply t o t h e v h o l e or any p a r t of t h e

conduct on the part of the respondents al leged

in the s ta tement o f c la im for the reason that

such conduct i s c o n d u c t i n t h e c o u r s e of

ove r seas ca rgo sh ipp ing engaged i n by a

shipowner i n pursuance o f a conference

a g r e e m e n t a l t e r n a t i v e l y o r c o n f e r e n c e

agreements within the meaning of s .112 .

(ii) A l t e r n a t i v e l y , t h a t P a r t I V o f t h e T r a d e

Prac t ices Act does not apply t o t h e whole o r

a n y p a r t o f t h e c o n d u c t o n t h e p a r t o f

respondents alleged i n the statement of claim

for the reason that such conduct i s conduct i n

r e l a t i o n t o outwards cargo shipping: and

2. That the conduct al leged against the respondent the

A u s t r a l i a n Meat and Live-Stock Corporation i n

paragraphs 29 t o 34 of the amended statement of claim

does not , in the l ight of the provisions of the

Austral ian Meat and Live-stock Corporation Act, 1977,

involve any contravention of the provisions of the

re levant	sect ion	(s.46) of	the	Trade	Practices	Act,
1974.

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F u l l argument has been heard on these prel iminary points . I

proceed t o g i v e my d e c i s i o n i n r e l a t i o n t o them.

The s ta tement of c la im a l leges that the appl icant i s a

New South Wales company which engages i n t h e a c t i v i t i e s of a

breakbulk car r ie r for p rof i t o f meat from A u s t r a l i a t o t h e e a s t

coast of the United States of America.

The f i r s t respondent i s t h e A u s t r a l i a n Meat and

Live-Stock Corporation ( "AMLC" . It i s a body corpora te

es tab l i shed under t he Aus t r a l i an Meat and Live-stock Corporation

- Act, 1977. It i s alleged by the statement of claim t o be a

trading corporation which is an authority of the Commonwealth and

which c a r r i e s on a business within the meaning of S . 2 A of the Act.

The third respondent, the Australian Shipping Commission, i s a

body corporate	established	under	the	Australian	Coastal	Shipping
Act,

- 1956. I t i s a l l e g e d t o be a t rading corporat ion carrying on

business under the name of Australian National Line as a c a r r i e r

of meat by sea from Aust ra l ia t o t h e United States of America and

t o be an authority of t h e Commonwealth which " c a r r i e s on a

business" within the meaning of s . 2 A of the Act. The second,

f o u r t h , f i f t h and s ix th respondents a re a l leged to be fore ign

corporations for the purposes of the r e sponden t s Act. I s h a l l , on occasion,

r e f e r t o respondents". Each of t h e second to s ix th as i s alleged " the corporate

the corporate respondents by the

statement of claim t o c a r r y on business as a c a r r i e r o f meat by

sea from Aus t r a l i a t o t he United States of America.

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The seventh to twelfth respondents constitute the

personal respondents. The seventh respondent is alleged to have

been, at material times, the chairman and a member of the AMLC.

Each of the other personal respondents is alleged to have been, at

material times, a representative and agent	of one or other of the
corporate respondents.

The applicant's case against the respondents, as

appearing from the statement of claim, falls into two distinct

branches. The first branch of the case involves allegations

against all the respondents. The second branch of the case

consists essentially of allegations against the AMLC of conduct in

which the other respondents are alleged to be involved as

co-conspirators and accessories.

The allegations under the first branch of the case may

be summarized as follows:

(i) It 1 s alleged against the corporate respondents

and the A.M.L.C. that they have engaged in, or

been accessories to, the making of contracts,

arrangements or understandings Ivhich contained

exclusionary provisions and which had the purpose

or effect or likely effect of substantially

lessening competitlon within the meaning of

s.45(2)(a) of the Act;

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(ii) I t is alleged against the corporate respondents

and t h e AMLC tha t they have engaged i n , o r been

accessories to conduct in breach of s .45(2)(b) of

the Act i n g i v i n g e f f e c t t o t h e p r o v i s i o n s o f t h e

c o n t r a c t s , a r r a n g e m e n t s u n d e r s t a n d i n g s o r

r e f e r r e d t o i n (i) o r one or more of such

contracts, arrangements or understandings:

(iii) It i s al leged against the corporate respondents

and t h e AMLC that they have engaged i n , o r been

accessor ies t o , conduct in concer t cont ra ry t o

the provis ions of s.45D of the Act . I t i s

a l l eged t ha t such conduct was engaged i n for t h e

purpose and would have o r would be l i k e l y t o have

t h e e f f e c t of caus ing e i ther subs tan t ia l loss o r

damage to t he bus iness of the appl icant and/or

the business of corporate l icensed meat exporters

who were p revented f rom, h indered o r in ,

a c q u i r i n g s e r v i c e s f r o m the a p p l i c a n t or a

s u b s t a n t i a l l e s s e n i n g o f c o m p e t i t i o n i n t h e

m a r k e t i n w h i c h t h e a p p l i c a n t a n d / o r s u c h

co rpora t e l i censed mea t expor t e r s supp ly or

acquire services:

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( i v ) I t is alleged against the corporate respondents

and the AMLC tha t they have engaged i n , o r been

a c c e s s o r i e s c o n d u c t c o n c e r t t o , i n i n L

contravention of s.45D(lA) of the Act. I t 1s

a l l eged t ha t such conduct was engaged i n f o r t h e

purpose and would have or substant ia l ly be l ike ly to have the

e f f e c t of prevent ing or hmdering

the app l i can t from engaging i n t r a d e o r commerce

between A u s t r a l i a and the eas t coas t o f the

United States of America;

( V ) It is alleged against the corporate respondents

and t h e AMLC t h a t , i n o f f e r i n g t o s u p p l y s e r v i c e s

in r e l a t ion t o t he expor t o f meat by sea from

A u s t r a l i a t o t h e e a s t c o a s t o f t h e United States

of America upon cer ta in condi t ions, they have

engaged i n conduct which meaning of cons t i tu tes exc lus ive

dea l ing wi th in the s.47 of the Act.

It i s a l so a l leged aga ins t these respondents tha t

they have been accessories to such conduct:

( v i ) I t i s al leged agalnst the personal respondents

t h a t t h e y h a v e e i t h e r e n g a g e d i n or been

a c c e s s o r i e s t o t h e c o n d u c t r e f e r r e d t o i n ( i ) ,

(ii) and (iii) above and that they have been

accesso r i e s t o t he conduc t engaged i n by t h e

corporate respondents and t h e AMLC r e f e r r e d t o In

(i) t o ( v ) above.

5 .

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The above summary i s , i n some r e s p e c t s , i n c o m p l e t e . I n

p a r t i c u l a r , it o m i t s r e f e r e n c e t o a l l e g a t i o n s a g a i n s t a l l

respondents of conspiracy to contravene the Act by en te r ing i n to

and giving effect to the a l leged arrangements and undertakings and

by engaging in the alleged conduct.

Under the second branch of the case, it is al leged

against AMLC t h a t it i s i n a p o s i t i o n s u b s t a n t i a l l y t o c o n t r o l t h e

market for the supply of carrying services i n r e l a t i o n t o t h e

export of meat by sea from A u s t r a l i a t o t h e e a s t c o a s t o f t h e

United States of America and that , in contravent ion of s . 4 6 ( l ) ( b )

and ( c ) of the Act, it has taken advantage of i t s power i n

r e l a t i o n t o appl icant from enter ing it o r engaging in t h a t m a r k e t f o r t h e p u r p o s e o f p r e v e n t i n g t h e competit ive conduct

within it. It i s al leged against the other respondents that they

have been conspired with the PMLC t o commit the p a r t i e s t o t h e AMLC's alleged conduct in that they have

a l leged contravent ions and

have "a ided , contraventlons. abbe t ted , counse l led and procured" t h e a l l e g e d

The first prel iminary point re la tes to both the f i r s t

and second branch of t he app l i can t ' s ca se . I t i s , i n e f f e c t ,

t h a t , i n the l igh t o f the p rovis ions o f Par t X of the Act whlch

dea l w i t h overseas cargo shipping, the conduct and a c t i v i t i e s of

which t he app l i can t compla lns a r e no t w i th in t he r ange o f

operation of the provisions of Part I V of t h e Act. The argument i n

support of th i s p re l iminary po in t i s put both on a r e s t r i c t e d

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bas is and on a wide general basis . These are ref lected in the

separa te c lauses ( ( i ) and ( i i ) ) i n which t h e f i r s t preliminary

point is s t a t ed . The wide argument i s that the provis ions of Par t

I

X of the Act provide an exclusive code on the subject of outwards

cargo shipping and contracts, agreements and arrangements r e l a t ing

the re to , and t h a t the conduct of which the applicant complains is

with in tha t amblt of operat ion subjec t mat te r and i s consequently excluded from t h e

of the re levant provis ions of Par t I V of t h e

Act. The more r e s t r i c t e d argument r e s t s upon the provis ions of

S .l12 of the A c t which, in t e rms , p rovides tha t Par t I V of the Act

does not apply in relation to a l imi ted c lass of overseas cargo

shipping.

The main tolerable f a c t s which the appl icant would attempt t o

prove, appear with c lar i ty from t h e a l l e g a t i o n s s e t o u t

i n the statement of claim and the par t icu lars o f those a l lega t lons

which the appl icant provided in the s ta tement of claim and

subsequently. A t the r i sk o f over -s impl i f ica t ion , the essent ia l

f ac tua l bas i s o f t he ca se which the app l i can t s eeks t o make

against the respondents can be s h o r t l y s t a t e d . I t i s t h a t t h e

AMLC and the corporate respondents have entered into agreements,

arrangements and understandings, have acted In concert and have

engaged in conduct , (and , in the case of t h e AMLC, has taken

advantage of monopoly power) with the purpose and ef fec t o f

procuring and ensuring that the corporate respondents a lone carry

meat by sea between Australia and the east coast of the United

States of America and that the applicant be completely excluded

from tha t t rade . Cent ra l to the case which the applicant proposes

t o a t t e m p t t o make a r e t h e s t a t u t o r y powers of t h e "C. I t u r n

t o a consideration of those powers.

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The AMLC i s , i n many respects , the successor of the

Austral ian Meat Board which was a body corporate incorporated by,

and with the	powers,	functions	and	dut ies	as	se	t	ou t	i n ,	the	Meat
-

Industry A c t , 1964. Sect ion 30(1) of that Act provided, inter

a l i a , t h a t a cont rac t for the car r iage o f meat by sea t o a place

beyond Australia should not be made except by the Australian Meat

Board o r by t h a t Board ac t ing as agent for the expor te r o r "m

conformity with such conditions (if any) as are approved by t h e

Board from t ime to t ime" . The AMLC was, as has been mentioned,

es tab l i shed by t h e A u s t r a l i a n Meat and Live-stock Corporation A c t ,

1977. That Act repealed the Meat Industry Act. 1964. Section

14( 1) of the 1977 A c t p r o v i d e s , i n t e r a l i a , t h a t a con t r ac t fo r

t he ca r r i age Aust ra l ia of meat or l ives tock , by sea , to a place beyond

sha l l no t be made except by the AMLC o r by t h e AMLC

acting as the agent for the exporter or "with such persons, and i n

conformity with such cond i t ions ( i f any ) a s a r e , from time t o

t ime, approved in writ ing by the Minis ter upon t h e recommendation"

of the AMLC. It can be seen t h a t t h e AMLC, under S. 14( l), can

effect ively exclude a .shipowner from the car r iage such carriage can o f meat o r

l ives tock from A u s t r a l i a i n t h a t a contract for

only be made e i t h e r by the AMLC, as pr incipal or agent , or wlth a

person approved i n w r i t i n g by the Minis te r upon t h e recommendation

of the AMLC. The contracts, arrangements and understandings, the

ac t ing in concer t and the conduct a l leged against the AMLC and t h e

corporate respondents are s t ructured upon these s t a tu to ry powers

of t h e AMLC. The allegations against the personal respondents are

l a rge ly of involvement i n a l l eged ac t iv i t l e s o f t he AMLC and the

corporate respondents.

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The s p e c i f i c l e g l s l a t i v e p r o v i s i o n s upon which t h e

appl icant p laces p r imary re l iance a re to be found i n s s . 4 5 ( 2 ) ,

45A, 45D, issues 45D(lA) 46(1) and 47 of the Act. To understand the

involved i n the de te rmina t ion of the f i r s t p re l iminary

poln t , it i s necessary to re fe r genera l ly to the p rovis ions o f the

Part of the A c t (Par t I V ) I n which a l l of those sections occur.

P a r t I V o f t h e A c t i s headed " R E S T R I C T I V E TRADE

PRACTICES". The general purpose and scope of the Part can be

described by .saying that it contains provisions which proscr ibe

and regulate agreements and conduct and which a r e aimed a t

procuring and maintaining competit ion in trade and commerce.

Broadly speaking, those provisions either control or p rosc r ibe t he

making of certaln contracts or arrangements or the reaching of

c e r t a i n u n d e r s t a n d i n g s , t h e g i v i n g o r e x t r a c t i n g of c e r t a i n

covenants in relatlon to land, the engaging in conduct involving a

secondary boycott, engagjng i n the practices of monopolization,

exc lus ive dea l ing o r r e sa l e p r i ce ma in tenance , engag ing I n

predatory price discriminatlon, and the increas ing of market share

by means of take-over or merger. The primary consti tutional heads

o f l eg i s l a t ive power a r e the corporat ion power (Cons t i tu t lon ,

s . 5 l ( x x ) ) and the t r ade and con t ro l s commerce power (Cons t i tu t ion , s .51( i ) )

and the r e l evan t l eg i s l a t ive and proscr ipt ions contained

i n P a r t arrangements I V a r e l a r g e l y d i r e c t e d t o c o n d u c t o r a g r e e m e n t s ,

or understandings i n t r a d e o r commerce or involv ing a

foreign, t rading or f inancial corporat ion. For reasons which w ~ l l

become subsequently clear, special reference should be made t o t h e

provisions of ss.45 and 45A.

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Section 45 ( 2 ) p r o v i d e s , i n t e r a l i a , that a corporation

sha l l no t arrangement or make understanding or g i v e e f f e c t t o a provision of a cont rac t ,

that "has the purpose, or would have

o r be compe t i t i on" . l i ke ly t o have t he e f f ec t , o f subs t an t i a l ly l e s sen ing

Sec t ion 45A(1) p r o v i d e s , i n t e r a l i a , t h a t

contracts, arrangements or understandings between competltors,

having the purpose or effect of f ixing, controll ing or maintaining

the p r i ces of goods o r s e rv i ces a r e deemed t o have the purpose or

effect of substantially lessening competit ion in the market for

those goods o r s e rv i ces . In t he r e su l t and regardless of form or

descr ip t ion (s.45A(5)), contracts, arrangements or understandings

between competitors, t o which a corporat ion is a par ty and which

f i x , maintain or control the price of services, such as freight

r a t e s f o r t h e c a r r i a g e o f goods, a r e , s u b j e c t t o some spec ia l

exceptions, proscribed by the provisions of Part IV. Among the

special exceptions i s tha t conta ined in S . 51(2) (g) which concerns

provis ions re la t ing exc lus ive ly to the expor t o f goods or supply

o f o v e r s e a s s e r v i c e s a n d t o w h i c h d e t a i l e d r e f e r e n c e will

subsequently be made.

Breach or threatened breach of a provision of Part I V

can be restrained by in junc t ion ( s . 8 0 ) . A person who has committed

or been involved in a contravention of the Part i s l i a b l e t o a

pecuniary penalty of $50,000 i n t he ca se of a person not being a

body corporate and $250,000 i n the case of a body corporate (s.76)

and can such conduct be sued by any person f o r damages suffered by reason of

( S . 82 ) .

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Par t X of the Act is headed "Overseas Cargo Shipping".

It contains a wide range of provisions controll ing and regula t ing

t h e a c t i v i t i e s o f shipowners i n , and i n r e l a t i o n t o , t h e c a r r i a g e

of goods vlholly Australia o r p a r t l y by sea from a p l a c e i n A u s t r a l i a t o a

place outside ("outwards cargo shipping"). It draws a

broad d i s t inc t ion between outwards cargo shipping under conference I

agreements and t h e a c t i v i t i e s o f i n d i v i d u a l s h i p o w n e r s i n

r e l a t i o n t o outwards cargo shipping.

A conference agreement i s d e f i n e d (s.111) a s an

"agreement t o which t h i s P a r t a p p l i e s " w h i c h i s , i n t u r n

( S .l13 (1)) defined as , subject to the sect ion, being an agreement

" t h e p a r t i e s t o which a r e or include two or more persons carrying

on two or more businesses that include outwards cargo shippmg and

is one t h a t makes provis ion , in re la t ion to ou twards cargo

shipping, having the purpose or effect of restricting, preventing

or hindering -

(a) competit ion between any of t h e p a r t i e s t o t h e

agreement: or

(b) compet i t ion be tween persons o ther than those

p a r t i e s and those pa r t i e s or any of them

........ ..... .

-14-

Section 113(2) provides that an agreement i s not "an agreement t o

which this Par t appl ies" by reason only of any provision as 1

between shipovmers of t h e one p a r t and shippers of the other par t

w i t h r e s p e c t t o t h e terms a n d c o n d i t i o n s w h i c h a r e t o b e

appl icable to contracts for outwards cargo shipping. Sect lon

1 1 1 ( 2 ) p r o v i d e s , i n t e r a l i a , t h a t f o r t h e p u r p o s e s o f P a r t X , an

arrangement understanding, or whether formal informal or and

whether express or implied, shall be deemed t o be an agreement.

Division 2 of Part X contains provis ions requir ing and

regulat ing the f i l ing conference of agreements . Divis ion 3

confers upon the Minister (who may be a d i f f e r e n t M i n i s t e r t o t h e

Minister concerned with the general administration of the Act:

see s.140(1)) and the Governor-General, wide powers i n r e l a t i o n t o

conference agreements and the activities of ship owners being

p a r t i e s t o impor tan t sec t ion in such agreements. For present purposes, the most

this Division is s . 1 2 2 which mus t be read i n

the context of the def ini t ion of "shipper body" contained i n

s.111.

By s.111 of the Act, "shipper body" i s defined as

meaning "an assoc ia t ion tha t , in the op in ion of the Minis te r ,

r ep resen t s t he i n t e re s t s , i n r e l a t l o n t o outwards cargo shipping,

of persons who are shippers of goods, or producers of goods of a

k l n d exported from Austral ia" . Sect ion 122 of the Act provldes

tha t the Minis te r may serve on each of the par t ies to a conference

agreement who ca r ry on outwards cargo shipplng to which t h e

agreement r e l a t e s , a not ice in accordance with the sect ion.

Section 1 2 2 ( 2 ) of the section provides:

-15-

"A not ice t o a party under sub-section (1) sha l l r eques t

t he pa r ty t o g ive t o t he Min i s t e r . no t ] a t - e r t han a

d a t e specified i n the notice, an undertaking in writ ing

executed by reasonably requested by t h e designated shipper t h e p a r t y t h a t , whenever the pa r ty i s

body, by

n o t i c e i n t o t a k e part in negot ia t ions wi th

wr i t ing ,

that shipper body w i t h regard t o arrangements for, and

t h e terms and condi t ions tha t a re t o be app l i cab le t o ,

ou twards cargo sh ipping t o which the conference

agreement relates --

(a ) the par ty w i l l t ake pa r t i n t hose nego t i a t ions and

will have due r ega rd t o ma t t e r s and considerat ions

r a i s e d , a n d r e p r e s e n t a t i o n s made, by t h e

designated shipper body i n	t h e	c o u r s e	of	t h e
negot ia t ions:

. . . . . . . . .

SectTon 123 provides that the Governor-General may, by I.

order, disapprove a conference agreement on a number of specif ied

and wide-ranging grounds. Among these g rounds a r e f a i lu re t o

comply with a request for an undertaking under s . 1 2 2 o r f a i l u r e t o

comply with an under tak ing g iven under tha t sec t ion in re la t ion to

t h e agreement. Upon a conference agreement being disapproved, the

agreement becomes ( s . 1 2 4 ( 1 ) ) unenfo rceab le . Sec t ion 124(2 )

provides that, under pain of a penal ty of $50,000, a p a r t y t o a

disapproved agreement shall not do any a c t or thing in pursuance

o f , or enforce or outwards purport to enforce, the agreement so f a r as it

r e l a t e s t o cargo shipping; o r e n t e r i n t o any other

conference agreement that relates, i n whole o r i n p a r t , t o t h e

carr iage of goods from A u s t r a l i a t o a goods t o which p lace ou ts ide Aus t ra l ia tha t

i s a p l ace t o t he ca r r i age o f the disapproved

agreement related: or do any ac t o r th ing in pursuance o f , o r

enforce or purport to enforce, such other conference agreement.

-16-

Division 4 of Par t X of the Act confers upon the

Min i s t e r and Governor-General s imi l a r powers i n r e l a t i o n t o t h e

ou twards ca rgo sh ipp ing ac t iv i t i e s o f i nd iv idua l sh ipowners .

Section 128 is the sec t ion which empowers t h e Minister t o s e r v e on

the ind iv idua l shipovmer a notice requesting an undertaking. Like

S .122, it m u s t be read in the context of the def ini t ion of

"shipper body" (see above). The sec t ion p rov ldes , i n t e r a l i a :

"(1) Subjec t t o sub-section ( 2 ) . the Minis ter may serve

on a shipowner a notice requesting the shipowner to

g i v e t o t h e M i n i s t e r , n o t l a t e r t h a n a da te spec i f ied

i n t he no t i ce , an undertaking i n writing executed by

the sh ipowner tha t , whenever the sh ipowner i s

reasonably requested by t h e designated shipper body, by

no t i ce i n wri t ing, t o t ake par t in negot ia t ions wi th

tha t sh ippe r body w i t h regard to arrangements for , and

t h e terms and c o n d i t i o n s t h a t a r e t o be appl icable to ,

outwards cargo shipping t o which the no t ice re la tes - -

(a ) t h e shipowner w i l l t a k e p a r t i n those negot ia t ions

and w i l l have due r ega rd t o matters and

considerat ions ra ised, shipper and representa t ions made,

by the designated body in t he cour se of

the negot ia t ions :

........ .......

( 2 ) A notice under sub-section (1) requesting an

undertaking shall be expressed t o r e l a t e t o outwards

cargo shipping by the shipowner to a spec i f ied por t o r

to specif ied ports , not being outwards cargo shipping

t h a t i s within the operation of a conference agreement,

not being	a disapproved agreement,	par t icu lars o f	which
have been	furnished under Division	2.

. . . . . . . .

The Governor-General may, on broad specified grounds,

declare a shipowner t o be, i n r e l a t i o n t o outwards cargo shipping

t o a spec i f ied por t o r por t s , a declared shipowner ( s . 1 2 9 ) . The

specif ied grounds include fa i lure to comply w i t h a request for an

-17-

undertaking under s.128 o r f a i l u r e t o comply with an undertaking

g i v e n u n d e r Section 130 provides t h a t s e c t i o n i n r e l a t i o n t o r e l e v a n t s h i p p i n g .

that shipping a declared shipowner shall not, in

respect of outwards cargo t o a por t spec i f ied i n the

order by virtue of which he is a declared shipovmer, engage i n a

number o f spec i f i ed ac t iv i t i e s . The s p e c i f i e d a c t i v i t i e s a r e a l l

of the kind covered by provisions of Part I V of the Act. Breach

of the t o a penalty provisions of S . l30 renders the declared shipowner l iable

of $50,000. I t seems fair t o comment t h a t t h e

Div is ion appears to p roceed on the b a s i s t h a t , u n l e s s t he

shipowner is a "declared shipowner" , the specif ied act ivi t ies

would	not,	in themselves,	be contrary to the Act.
Division 5 of	Part X p rov ides fo r t he r e f e rence t o t he

Trade Practices Tribunal of matters for inquiry and report and

contains provis ions dealmg with prosecutions and with aiding and

abet t ing offences against the Part . Division 6 confers upon a

shipper, shipowner or other person who su f fe r s loss o r damage by

t h e a c t of another person done in contravent ion of s.124 or s .130,

t h e r l g h t to recover the amount of the loss o r damage by ac t lon

against that o ther person in the Federal Court .

The above examination of c r e a t e the provis ions of Par t I V and

Par t X o f the A c t t e n d s t o two general prima facie

impressions. F i r s t , t he s t ruc tu re and contents of Part X, with

i ts Preliminary Division, including a de f in l t l ons s ec t ion , its

Divis ion es tabl ishing a f l l ing system, i t s Divisions dealing w i t h

-18-

regulat ion and control of outwards cargo shipping act ivi t ies both

under conference agreements and by ind iv idua l sh ippers , I t s

!

General Division dealing w i t h i nqu i r l e s by the Trade Practices

Tribunal and, i n a general way, w i t h prosecutions and with a id ing

and abett ing offences against the Par t , and Its Division dealing

with c ivi l remedies in respect of contravent ions, tend t o convey a

clear impression of a comprehensive code dealing w i t h outwards

cargo shipping. Second, it is appa ren t t ha t , i f bo th Pa r t I V and

Par t X a r e gene ra l ly app l i cab le t o t h e same agreements and

prac t ices , there i s considerable room for overlapping and c o n f l i c t

i n t h e p r a c t i c a l o p e r a t i o n o f t h e d i f f e r e n t l e g i s l a t i v e

provisions. I n p a r t i c u l a r , t h e making o r g i v i n g e f f e c t t o a n

ag reemen t a s t o r a t e s wh ich was reached as a r e s u l t o f

negotiations pursuant to an undertaking given under Division 3 o r

Division 4 of Part X would almost inevitably involve prima facie

contravention of the provisions of Part I V ( s s . 45 and 4 5 A ) , whlle

conduct which a t t r ac t ed t he pena l t i e s imposed for breach of the

provis ions o f s.124 o r s.130 would be pr ima facie calculated a lso

t o a t t r a c t t h e p e n a l t i e s imposed by s .76 f o r a breach o f t h e

provisions of Part I V . These general impressions tend t o favour

t h e view that the general provis ions of Par t I V should be

cons t rued as no t appl icable to the subjec t mat te r of t h e s p e c i a l

provisions of Part X. The in t e r - r e l a t ion between the provis ions

of Part I V and the p rovis ions o f Par t X m u s t , however, be seen i n

the context of s.112 ( i n Par t X ) and s . 5 1 ( 2 ) ( g ) ( i n P a r t I V ) .

-1 9-

Section 1 1 2 of the Act provides:

" P a r t IV does not apply i n relation t o overseas cargo

shipping engaged i n by a shipowner i n pursuance of a

conference agreement , inc luding a d isapproved

agreement".

Reference has already been made to t he p rov i s ions of the Act

( S .l11 and S .l13 ) which, when read together, provide a de f in i t i on

of "conference agreement" . Examinat ion of those p rovis ions

reveals the narrowness of the exclusion from the p rovis ions of

Par t I V which S. 112 provides.

Read l i t e r a l l y , t h e words of s.112 provide an exemption

only i n shipowner i n pursuance re la t ion to overseas cargo shipping engaged i n by a

of a conference agreement. They do not , I n

terms, exclude the actual making of such an agreement. The words

" i n r e l a t i o n t o " a r e , however, "extremely wide" and "e l a s t i c " ( s ee

Tooheys L t d . v. Commissioner of Stamp Duties ( N . S . W . ) ( 1 9 6 1 ) 105

C.L.R. 602 a t pp. 620 and 624). With some h e s i t a t i o n , I have come

t o t h e view tha t the exc lus ion from Par t I V which s.112 provides

would extend t o t h e making of a conference agreement as well as t o

overseas cargo shipping engaged i n by a shipowner i n pursuance of

it. The narrowness of the exclusion contained in s.112 does not,

however, flow from t h e f a c t t h a t it does not, i n terms, encompass

the making of the conference agreement as well as conduct i n

pursuance of it. It flows from the def ini t lon of "conference

agreement".

20-

t

By vir tue of the provis ions o€ s.l13(i) Of the Act, it

is a requirement of a "conference agreement" t h a t t h e p a r t l e s t o

it "are OE include tvo or pore persons carrying on t w o or more

l I t vas

bus inesses	t ha t	i nc ludz	ou rwards	ca rgo	sh ipp ing" .
l

submitted, on bshalf of the respondenrs, that this requirement is

s a t i s f i e d i f one only of 'cvro o r more businesses carr ied on by t h e

parties includes outtlards cargo shipping, that is t o s a y , ~f the

agreement is betveen one or nore shippers and only one shipovner.

I am unable so CO read the sub-section. In m y view, t h e

requirement is sa t i s f ied on ly i f t h e p a r t i e s t o t h e agreement

include tiro or more p y s o n s each of whom ca r r i e s on a business

that includes octvards cargo shipping. I n t h e r e s u l t , t h e

escl usion \:hi& S.?-12 provides does not extend to the condzct or

agreements of ~ndividual shipowners . In par t icular , it does not

extend t o agreements of an individual shipowner entered into In

pursuance of negoriations under Ihvis ion 4 of Part X o r conducr 3.n

pursuance of such agreements.

The scope of what cons t i tu tes a "conference agreement"

and, i n consequence, t h e ambit of the exclusion contallled i n S .l12

are fur ther l imi ted by the provis ions of S .l13 ( 2 ) which, as has

been mentioned, provide that an agreement i s not provis ion an agreement t o

vhich Part X appl ies by reason only .of any as between

shilwwners of the one p a r t and shippers of the other par t wi th

r e s p e c t t o t h e terms and cond i t ions t ha t a r e t o be appl icable to

c .

contracts for outwards cargo shipping. A considerable amount of

discussion took place i n the course of argument before ne a s t o

-21 -

t h e p r e c i s e e f f e c t t o be given t o and some of S . l13 ( 2 ) and written submissions

on behalf of the appl icant the respondents on t h e

e f f e c t of the sub-section were received by me af te r the conclus ion

of oral argument. It was submitted on behalf of the respondents

t h a t t h e words of S .113.(2) should be given a ve ry r e s t r i c t ed

meaning and confined to pa r t i cu la r p rov i s ions , r egu la t ing t he

shipment of pa r t i cu la r goods, of a type found, for example, in a

b i l l of lading. I do not accept that submission. It is, i n my

view, p l a in from the words used t h a t t h e p r o v i s i o n s r e f e r r e d t o

i n s . 1 1 3 ( 2 ) t h e one p a r t and shippers of include general provisions as between shipowners of

the o the r pa r t with re spec t t o t he

common or general terms and condi t ions upon which the shipowners

will ca r ry goods. The p rac t i ca l e f f ec t o f t h i s r ead ing o f

s .113(2) i s t o c o n f i n e a conference agreement t o one which

contains provisions binding between two or more shipovmers, being

included among t h e p a r t i e s t o it, i n t e r s e . The exclusion

contained in s.112 will not , on t h i s view, extend t o what i s no

more t h a n a general agreement as t o terms and cond i t ions ,

including rates of carriage, reached between a group of shipowners

of t h e one p a r t and a group o r body of shipowners of the other

pa r t . I n pa r t i cu la r , t he exc lus ion will not be ca lcu la ted to

extend t o any agreement reached between shipowners of t h e one p a r t

and shippers of the o ther par t as a resu l t o f negot ia t ions carried

on i n pursuance of a n undertaking given t o t h e M i n i s t e r under

Division 3 of P a r t X .

-22-

Section 51(2) (g) of the Act provides that in determining

whether a contravenLion of Part IV. o thpr than s.45D or s.48, has

l

been committed, regard shall not be had :

"to any provision of a contract, arrangement or

understanding, being a provision that relates exclusively to the export of goods from Australia or to the supply of services outside Australia, if full and

accurate particulars of the provision (not including

particulars of prices for goods or services but including particulars of any method of fixing, controlling or maintaining such prices) were furnished

to the Commission before the expiration of 14 days

after the date on which the contract or arrangement was made or the understanding was arrived at, or before 8

September, 1976, whichever was the later. "

There is plainly room for legitimate dlfferences of

opinion as to the precise meaning to be given to the words of

S .51(2) (g). This is the result, in part, of the difficulties of

construction which must inevitably flow from the combination of

the word "relates" which has an extremely wide but vague and

indefinite meaning with the word "exclusively" vlhich has a narrow

and precise meaning. It also results, in part, from the

difficulty in determining whether the reference to a provision

relating "exclusively" to the export of goods should be restricted

to a provision dealing with actual export as such or should be

construed as embracing contracts for the carriage of goods in the

course of their export. Putting these difficulties to one side,

there are a number of aspects of S. 51 (2)	(g) whhlch are important
for present purposes.

-23- unconditionally

First, s .51 (2 ) (g ) does not exclude the

p rov i s ions t o which it r e f e r s from t h e ambit of the provisions of

Par t I V (other than S .45D o r S .48 1. It excludes them from those

provisions only i f t h e f u l l and accu ra t e pa r t i cu la r s spec i f i ed a r e

f i l e d i n accordance with, and within the time allowed by, the

paragraph. such If f u l l and accura te par t icu lars a re no t so

f i led , the exc lus ion Which the paragraph contains does not apply.

In t h i s r ega rd , it is important to cont ras t the p rovis ions o f

S. 5 1 ( 2 ) (g) ) with the s i t u a t i o n which would e x i s t i f the exclusion

were uncond i t iona l r ega rd le s s o f f a i lu re t o f i l e f u l l and accura te

p a r t i c u l a r s bu t such f a i l u r e was i n i t s e l f a breach of the Act

which a t t r a c t e d a penal ty .

Second, the descr ip t ion of the "provis ion" to which

S . 5 1 ( 2 ) ( g ) a p p l i e s d o e s n o t , i n t e r m s , c o r r e s p o n d with t h e

desc r ip t ion any t he o f ag reemen t s , o f a r r angemen t s o r

understandings t o which the provisions of Part X a r e app l i cab le .

To t he ex ten t t ha t t he re i s such correspondence, it would, i n view

of t h e d i f f i c u l t i e s o f c o n s t r u c t i o n t o which reference has been

made, seem l eg i s l a t ive des ign . more t o be coincidental than the resul t of any

Thirdly, it i s p l a i n t h a t , even giving a wide meaning t o

t h e t e r m s agreements o f s . 5 1 ( 2 ) ( g ) , p a r t i c u l a r p r o v i s i o n s o f g e n e r a l

reached as a r e s u l t o f n e g o t i a t i o n s p u r s u a n t t o

Division 3 or Division 4 of Part X would be outs ide the bounds of

the protect ion given by S. 5 1 ( 2 ) ( CI) . Provisions which would

-24-

properly be seen as being " w i t h regard to arrangements for , and

t h e terms and c o n d i t i o n s t h a t a r e t o be applicable to, outwards

cargo shipping" ( s . 1 2 2 ( 2 ) and S . 128 (1) may well l i e outs ide what

i s properly encommpassed i n t h e r e f e r e n c e t o a "provision . . . t h a t

r e l a t e s e x c l u s i v e l y t o the export of goods" i n s.51(2) ( g ) .

The above examination of the provislons of s.112 and

s . 5 1 ( 2 ) ( g ) makes plain that those provis ions do not completely

remove t h e p o t e n t i a l c o n f l i c t and overlapping between Part X and

Pa r t I V of the A c t . In par t icular , notwithstanding the ef fec t o f

s.112	and	s . 5 1 ( 2 ) ( g ) , :
(i) Agreements which f l o w f r o m n e g o t i a t i o n s i n

pursuance of undertakings given under Division 3

and Divis ion 4 o f Pa r t X , and conduct in

pursuance thereof , a re l ike ly to be prima f a c i e

proscribed by the provis ions ( i n p a r t i c u l a r , s.45

and s.45A) of Part I V . Even i f such agreements

are confined to p rovis ions o f the type re fe r red

t o i n s . 5 1 ( 2 ) ( g ) , t h e making o f , and giving

e f f e c t t o , them will not be removed from the area

of operation of the provisions of Par t I V unless

t h e f i l i n g r e q u i r e m e n t s l a i d down, b u t no t

imposed under penalty, by s .51(2)(g) are complied

with. Where such agreements are not so conflned,

t he p rosc r ip t ion will not be merely prima facie:

it w i l l be absolute:

-25-

(ii) Conduct involving breach of the provisions of

S. 124 or S .l30 and attracting the penalties

imposed by one or other of those sections and the

civil liability in damages under Division 6 of

Part X will be likely, at least prima facie, to

constitute a breach of the provisions of Part IV

attracting the different penalties imposed by

s.76 and the distinct civil liability in damages

imposed by S .82; and

(iii) Conduct which is plainly assumed by Division 4 of

Part X to be lawful by a shipovmer who is not a

declared shipovmer will be likely to be prima

facie unlawful under the provisions of Part IV.

In the light of the above, I return to the question

whether, upon the proper construction of the Act, the general

provisions of Part IV were intended to apply in respect of the subject matter of the special provisions of Part X, that is to say, in respect of the subject matter of outwards cargo shipping and practices, conduct, agreements, arrangements or understandings engaged in, entered into or reached in relation to such shipping.

On the one hand, one cannot but be conscious of the

force of the argument advanced on behalf of the applicant that the

Court should be reluctant to imply such a general exclusion of the

I

-26-

subject matter of Part X from the provis ions of P a r t IV i n a

I

context where the Par l iament has expressly provided, in s.112, f o r

a more l imited exclusion. On the other hand, the provis ions of

Par t X contam an apparently comprehensive and internally cohesive

code on the subject matter of outwards cargo shipping and, In my

view, t h e s p e c i f i c m a t t e r s t o which reference has been made

provide strong grounds for concluding that the subject matter was

not intended also to be governed by c o n f l i c t i n g overlapping and, t o a

s i g n i f i c a n t e x t e n t , p r o s c r i p t i o n s a n d c o n t r o l s

contained i n P a r t IV. This i s p a r t i c u l a r l y so i n t h e c a s e o f t h e

making and observance of agreements resulting, i n the o rd inary

course, from negotiations in pursuance of an undertaking given t o

the Minis ter under S -122 or S .l28 of t h e Act.

The undertakings which the Minis te r is empowered by

s s .l22 and 1 2 8 t o r eques t , ob l iga t e t he r e l evan t shipowners or

shipowner to t ake pa r t i n nego t i a t ions w i th r ega rd t o a r r angemen t s

f o r , and the terms and cond i t ions t ha t a r e t o be appl icable to ,

outwards cargo shipping with a body represent ing the sh ippers for

whom goods a re ca r r i ed . Fa i lu re t o g ive a requested undertaking

o r t o honour an undertakmg once given will render the shipowner

in ques t ion l i ab l e t o t he s eve re consequences of disapproval of

the relevant conference agreement under s.123 o r , i n t h e c a s e o f

an ind iv idua l sh ipowner , of be lng "dec lared" under S .129.

Pla in ly , it i s in tended tha t the negot ia t ions w i l l have some poin t

and t h a t any agreed outcome of them will be binding on shipowners

and shippers . Equal ly plainly, the making and g i v i n g e f f e c t t o

-27-

any agreement resul t ing f rom such negot ia t ions would a lmost

c e r t a i n l y , a t l e a s t p r l m a f a c i e , i n v o l v e b r e a c h e s of the

I .

substantive provisions of Part I V of the A c t i f those p rovis ions

a re app l i cab le t o t he sub jec t ma t t e r o f t hose nego t i a t ions . It i s

h ighly un l ike ly that it was the l e g i s l a t i v e i n t e n t that t h e

shipowner under a conference agreement or the individual shlpowner

should, for practical purposes, be under a l e g i s l a t i v e c o n s t r a i n t

t o g i v e , and t o honour, an undertaking t o engage in nego t i a t ions ,

with regard to outwards cargo terms and condi t ions, w i t h a

representa t ive body of shippers in circumstances where t h e making

o r g i v i n g e f f e c t a n y t o a g r e e m e n t r e s u l t i n g f r o m t h o s e

negot ia t ions would almost certainly render him, a t l e a s t prima

f a c i e , l i a b l e t o the p e n a l t i e s i m p o s e d f o r b r e a c h o f t h e

provisions of Part I V of the A c t . I t seems t o me that t h e

unavoidable conclusion i s that the provis ions of Par t I V were not

intended t o be a p p l i c a b l e t o t h e making o f , o r g i v i n g e f f e c t t o ,

such an agreement. That being the case, i t fo l lows tha t S - 1 1 2

cannot properly be regarded as containing an exhaustive statement

of the ex ten t t o conduct which the provisions of Part I V of the A c t a r e

inappl icable to or agreements covered by Part X and much

of the apparent force of the argument based on S . l 1 2 disappears.

A s a matter of general constructlon, where t h e r e i s

repugnancy be tween the genera l p rovis ion o f a s t a t u t e and

provisions dealing w i t h a pa r t i cu la r sub jec t ma t t e r , t he l a t t e r

m u s t prevail and, to the extent of any such repugnancy, the

general provisions will be i napp l i cab le t o t he sub jec t ma t t e r of

-28-

the spec ia l p a r t i c u l a r p rovis ions . "The r u l e i s , t h a t wherever t he re i s a

l

enactment and a general enactment i n t h e same s t a t u t e ,

and t h e overrule the former, l a t t e r , t a k e n i n i t s most comprehensive sense, would

the particular enactment mus t be t aken t o be

operat ive ..." (per Romilly M.R., Pret ty v . Sol ly L18591 26 Beav.

606 a t p. 610) . Repugnancy can be present in cases where t h e r e i s

no d i r e c t c o n t r a d i c t i o n b e t w e e n t h e r e l e v a n t l e g i s l a t i v e

provisions. It i s present where it appears , as a mat ter of

cons t ruc t ion , tha t spec ia l p rovis ions were intended exhaustively

t o govern the i r pa r t i cu la r sub jec t ma t t e r and where general

provis ions, i f h e l d t o be a p p l i c a b l e t o the pa r t i cu la r sub jec t

mat ter , would cons t i t u t e a departure from t h a t i n t e n t i o n by

encroaching on tha t subjec t mat te r . A more fundamental example of

such repugnancy i s where the pa r t i cu la r p rov i s ions p re sc r ibe o r

encourage conduct which the general provis ions would render prima

facie, though not irremediably, unlawful or where the particular

provis ions assume to be l awful conduct which the genera l

provisions would render prima facie unlawful.. I have already

indicated my view t h a t t h e l a t t e r , more fundamental, example of

repugnancy is p resen t i n t he i n s t an t ma t t e r . I cons ide r t ha t t he

former example of repugnancy is l ikewise present .

The conclusion which I have reached from an overall

consideration of the Act is that the provis ions of Par t X were

intended by the Par l iament to const i tute an exhaust ive code

cont ro l l ing and r egu la t ing , i n so f a r a s r e s t r i c t i v e p r a c t i c e s a r e

' concerned, outwards cargo shipping. The inc lus ion of the l iml ted

I

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provisions of s.112 is to be explained by reference to the

legislative history of the provisions of that section in particular and of Part X in general. Notwithstanding the inclusion of that section, I am of the view that the proper

inference to be drawn upon the overall construction of the Act is

that the provisions of Part IV of the Act were not intended to be

applicable to outwards cargo shipping or to practices, conduct,

agreements, arrangements or understandings engaged in, entered

into or necessary to consider the effect of my conclusion in that regard upon the applicant's action as pleaded and partlcularized. reached in relation to such shipping. It becomes

Examination of the statement .of claim and the further

and better particulars subsequently provided by the applicant

discloses that the whole of the first branch of the applicant's

case falls within the subject matter of practices, conduct,

agreements, arrangements and understandings engaged in, entered

into or reached in relation to outwards cargo shipping. The

, I

contracts, arrangements and understandings which constitute the

basis of the alleged breaches of s.45 (2) (a) and s.45 ( 2 ) (b) of the

Act are all concerned with outwards cargo shipping. The conduct

in concert alleged to contravene S .45D and S .45D(lA) of the Act

and the conduct alleged to constitute exclusive dealing wlthin the

meaning of s.47 are likewise in relation to such shipping. The

allegations of conspiracy, aiding and abetting and being

accessories to conduct are to be classlfied in accordance with the

classlfication of the substantive primary allegations which have

been mentioned.

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The pos i t ion is not quite so clear as regards the second

branch of the appl icant ' s case , tha t i s t o say , the a l lega t ions

based on an alleged taking advantage by MlLC of a power t o c o n t r o l

t h e market fo r t he supp ly o f ca r ry ing s e rv i ces i n r e l a t ion t o t he

export of meat by sea from Aust ra l ia t o the east coast of the

United States shipowner and i ts alleged of America. The AMLC i s no t a l l eged t o be a

conduct i n t h i s r ega rd does no t l i e a t

t he hea r t o f t he sub jec t ma t t e r o f Pa r t X. The manner i n which

AMLC i s alleged, in paragraphs 32 and 33 of the amended statement

of claim, t o have taken advantage of its al leged power i n r e l a t i o n

t o t h e market i s , however, t o exclude the applicant from supplying

c a r r y i n g s e r v i c e s i n t h a t market and t o f i x and determine freight

ra tes for container vessels operat ing within that market for a

par t icular purpose. In my view, the conduct a l leged under the

second branch of the applicant 's case directly relates to outwards

cargo shipping and, for that reason, i s excluded from the scope of

s.46	of	the	Act.
It follows that I uphold preliminary point l( ii) , t h a t

i s t o s a y , I hold tha t Par t I V o f the A c t does not apply t o any

p a r t of t he conduc t , p rac t i ces , ag reemen t s , a r r angemen t s o r

understandings on the pa r t o f t he r e sponden t s a l l eged i n t he

amended statement of clalm for the reason that such conduct,

practices, agreements, arrangements and understandings are i n

r e l a t i o n t o o u t w a r d s c a r g o s h i p p i n g . I n t h e r e s u l t , t he

app l i can t ' s ac t ion m u s t f a i l and should be dismissed.

i

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There remain for considerat ion prel iminary points l(i)

and 2.

Preliminary point upon which I have l(i) was argued i n t h e a l t e r n a t i v e t o

preliminary point l(ii) ruled. I t i s intended

t o cover an argument on behalf of the respondents that S .l12 of

t h e Act excludes from the a rea of operat ion of P a r t I V of the Act

a l l of the statement of claim conduct on t h e p a r t of the so much of such respondents al leged i n t h e

other than conduct a s i s

comprised or i s based upon the alleged contraventlon by AMLC of

the provisions of S .46 of the Act. The i s sue between t h e

appl icant and the respondents on this preliminary point concerns

the proper construction of S .l12 of the Act and the ex ten t o f t he

exclusion from the provisions of Part I V which it contains.

Pre l iminary Poin t 2 c o n c e r n s t h o s e p a r t s contravention o f t h e

statement of claim which a r e based upon the alleged

by AMLC of the provisions of S .46 of the A c t . It i s intended t o

cover the submission on behalf of the respondents that the conduct

a l leged could argument i n support not const i tute a breach of that sect ion. The

of the submission was d iv ided in to the

following five heads :

( a ) That the conduct proscribed by s.46 is conduct of a

suppl ie r o r acqui re r of goods wi th in t he r e l evan t

market and it is not suggested that AMLC is such a

suppl ie r o r acqui re r ( see s .46(4) of the Act):